In the first week of July, the D.C. Circuit issued five administrative-law opinions.

First, in Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, the court vacated an order that involved late fees for borrowed shipping containers. In April 2020, an ocean carrier (Evergreen) gave several loaded shipping containers to a trucking company (TCW) at the Port of Savannah. TCW returned the containers seven days late, so Evergreen charged a late fee. TCW objected to part of that fee because the port had been closed on May 23–25 due to the COVID-19 pandemic, which prevented TCW from returning the containers on those days. TCW later filed a complaint with the Federal Maritime Commission, which held that the disputed part of the late fee was unjust and unreasonable under the Shipping Act of 1984.

The D.C. Circuit, in an opinion by Judge Ginsburg, held that the Commission’s decision was arbitrary and capricious in violation of the Administrative Procedure Act. The Commission failed to consider several relevant facts: for example, that TCW knew before picking up the containers that the port would be closed on May 23–25. In addition, the Commission based its decision on an illogical claim: that the disputed part of the late fee didn’t give TCW an incentive to bring back the containers on time. The court therefore vacated the Commission’s order and remanded to the agency.

Second, in Hospital de la Concepcion v. NLRB, the court denied a petition for review of an NLRB order. The Board had found that Hospital de la Concepción, Inc. had violated the National Labor Relations Act by reducing its employees’ work hours without bargaining with their labor union. The hospital argued that it didn’t have an obligation to bargain with the union because the collective bargaining agreements authorized the hospital to take that action unilaterally. But the D.C. Circuit rejected that argument. In an opinion by Judge Henderson, the court held that the collective bargaining agreements authorized the hospital to change its employees’ shifts, but not their overall hours.

Third, in Sandpiper Residents Ass’n v. HUD, the D.C. Circuit interpreted a provision that governs the Section 8 housing program. In May 2019, HUD inspected Sandpiper Cove, an apartment complex that was subsidized under the Section 8 program. The inspection revealed numerous problems, such as insect infestations and broken kitchen appliances, so HUD sent a Notice of Default to the property’s owner, Compass Pointe Apartments Texas, LLC. Compass Pointe failed to fix the problems, so the tenants sued HUD, seeking to compel the agency to give them vouchers that would allow them to move somewhere else. While the case was pending, however, Compass Pointe sold the property to a new owner, Winne Street. And as Judge Wilkins explained in an opinion for the court, that doomed the plaintiffs’ claims: federal law authorized HUD to give vouchers to the plaintiffs only when the current owner of the property had received a Notice of Default. Because the prior owner (Compass Pointe) had received the notice, and the current owner (Winne Street) had not, the plaintiffs weren’t entitled to relief.

Fourth, in Vinyl Institute, Inc. v. EPA, the court held that an EPA order lacked substantial evidence. In March 2022, the EPA ordered seven chemical manufacturers/processors to test whether 1,1,2-Trichloroethane, a liquid used in chemical production, presented an unreasonable risk of injury to health or the environment. Vinyl Institute, Inc. petitioned for review, arguing that the administrative record lacked substantial evidence to support the order. The EPA responded by citing evidence in the non-public portion of the record. In an opinion by Judge Henderson, however, the D.C. Circuit held that the EPA couldn’t rely on non-public evidence to satisfy its evidentiary burden. The court therefore vacated the EPA’s order and remanded to the agency.

Fifth, in Young v. EPA, the D.C. Circuit rejected a challenge to the EPA’s failure to appoint two experts, S. Stanley Young and Louis Anthony Cox, to the Clean Air Scientific Advisory Committee. In an opinion by Judge Walker, the court held that both Young and Cox lacked standing because they had failed to identify a sufficient injury-in-fact. The court rejected several arguments: (1) The plaintiffs argued that they were denied an equal opportunity to compete for an appointment because the EPA unlawfully preferred candidates of other races and sexes. But the plaintiffs failed to raise that claim in their complaint. (2) The plaintiffs argued that they were denied an equal opportunity to compete because the EPA was hostile to their views about air-quality standards. But the record lacked any evidence to support the plaintiffs’ theory. (3) The plaintiffs argued that they had missed out on the benefits of committee membership. But the plaintiffs didn’t have a right to committee membership, so they didn’t have a right to those benefits.