“America’s Court” (as I call it) strikes again: Welcome back to Sixth Circuit Reviewed!

This month, no published administrative law cases from the Court. But don’t fret. Fireworks this round came by way of a motions panel, which stayed the Federal Communication Commission’s net neutrality rules. 

Quick (overly simplified) background: The Communications Act of 1934 allows the FCC to issue rules and regulations governing broadband providers. But the Act’s reach turns on whether providers amount to “common carriers.” The FCC has more authority over common carriers, less over non common carriers. 

The Obama Administration classified providers as common carriers in 2015. The Trump-era FCC reversed that decision in 2018. Earlier this year, the FCC went back to the 2015 view. Providers challenged the rule and, in the meantime, sought a stay in the Sixth Circuit. 

A motions panel of Chief Judge Sutton, Judge Clay, and Judge Davis granted the stay request pending review challenges to the rule. And, in doing so, the Court largely relied on the much-debated-and-still-being-fleshed-out Major Questions Doctrine. 

Why the MQD? A full merits opinion might include more rationale, but the motions panel provided the basics. It first explained—echoing recent Supreme Court decisions—that courts presume Congress keeps major policy questions for itself. Agencies generally decide mere “interstitial matters” (quoting Justice Breyer’s famous line). 

But not always. Congress can hand over major legislative authority to agencies when it clearly says so. “The more an agency asks of a statute,” the Court wrote, “the more it must show in the statute to support its rule.”

Net neutrality met the major-ness test, and so it requires “clear congressional authorization,” according to the Court. That’s because, the Court explained, even the FCC recognizes that broadband is “absolutely essential to modern day life,” as well as national security and public safety. 

Major-ness met, the Court turned next to whether Congress clearly authorized the rule. Likely not, so said the Court. “Nowhere does Congress clearly grant the Commission the discretion to classify broadband providers as common carriers.” In fact, the Act does not allow the FCC to “define” “broadband providers specifically or the internet more generally.” And without a “clear mandate to treat broadband as a common carrier, we cannot assume that Congress granted the Commission this sweeping power.” 

Brass tacks: “the final rule implicates a major question, and the Commission has failed to satisfy the high bar for imposing such regulations.” 

Interestingly, the panel did not cite recent MQD cases—including West Viginia v. EPA and Biden v. Nebraska, both of which explicitly relied on the MQD. Nor did the Court cite Alabama Ass’n of Realtors v. Dept. of Health and Human Servs. or NFIB v. OSHA, both of which relied on similar reasoning without specifically mentioning the “major questions doctrine.” (The Court did cite NFIB in discussing other stay factors not in the MQD context). Instead, the Court relied on older cases well known in the administrative law world—MCI, Brown & Williamson Tobacco Corp., and Whitman v. American Trucking. None of those cases invoked the MQD, and the motions panel appeared to consider the MQD as one and the same as Whitman’s elephants-in-mouseholes canon. 

That’s sure to raise thoughts from admin law scholars who continue to debate whether the MQD amounts to a substantive canon to guard against congressional delegations or as an interpretive rule to simply discern the statute’s meaning.  Those disputes sit far beyond the metes and bounds of this post—though it’s one we’ll continue to watch. 

Chief Judge Sutton’s concurrence raised an additional hot administrative law issue to the forefront. He rejected the FCC’s attempt to invoke Skidmore deference—a highly relevant topic given the recent death of Chevron deference. Indeed, in a world without Chevron, courts will have to grapple with just how much they will defer to agencies under Skidmore and its kin.  

 Skidmore, Judge Sutton says, turns in part on an agency’s “technical expertise.” But whose expertise? As Judge Sutton notes, most “group[s] of experts” since the Act’s passage have rejected the FCC’s current reading. And so Skidmore in fact points in the opposite direction of the current FCC. It “favor[s] the Commission’s first interpretation, not its recent one.” On Chief Judge Sutton’s view, then, agencies must do more than simply rely on its current expertise. 

With the rule stayed, the case will continue to move forward when a full merits panel will consider the case. We’ll be sure to cover the opinion whenever it comes out. 

Elsewhere, the Court also issued a three-page unpublished decision reinstating a state-led challenge to the EPA’s rule defining the “waters of the United States” under the Clean Water Act. 

The district court threw out the case filed by Kentucky and several industry groups because, it ruled, the plaintiffs lacked standing. 

The Sixth Circuit reversed. The Per Curiam Court explained that the district court failed to give notice to the parties that it intended to dismiss the complaint based on arguments that the EPA did not raise. And because the court should give the plaintiff a chance to amend the complaint, the case was remanded to the district court. 

Whether the lawsuit continues, though, remains unclear. The panel noted that “the Supreme Court’s decision in Sackett v. EPA, 598 U.S. 651 (2023)” had “alleviated the vas majority of Plaintiff’s alleged harms and put the viability of this suit into question.” In Sacket, the Supreme Court held that only waters with a “continuous surface connection” to navigable waters fall within the Clean Water Act. Plaintiffs may well have no more to argue after Sackett, but, at the very least, the Sixth Circuit believes Plaintiffs ought to at least have a chance to make their case. 

That’s all the latest in admin happenings at the Sixth Circuit. As always, feel free to pass along anything I missed or any other relevant decisions (including district court rulings). See you next time. 

John Kerkhoff is a senior managing associate at Benesch, Friedlander, Coplan & Aronoff where he practices in the litigation, administrative law, and appellate law practice groups. You can reach him at jkerkhoff@beneschlaw.com.