The D.C. Circuit releases opinions on Tuesdays and Fridays. We read them all so you don’t have to. On Friday (Aug. 17), the court issued six opinions:
Air Alliance Houston v. Environmental Protection Agency. President Obama’s EPA passed a regulation near the end of his term called the Chemical Disaster Rule that was intended to prevent disasters at chemical plants and mitigate the harm when they do occur. The Trump administration tried to delay the rule’s implementation for nearly two years. A group of environmentalist groups and states sued, arguing that the EPA’s delay was basically a backdoor attempt to rescind the rule without formal rulemaking. In a per curiam opinion issued by Judges Rogers and Wilkins, the D.C. Circuit agreed, saying that the EPA’s rationale made a “mockery” of the statute that limits the agency’s ability to postpone rules informally. The court reasoned that the EPA could delay the rule for three months, at most, but that two years was beyond the scope of what Congress explicitly allowed. The court noted that if the EPA wants to get rid of the rule, it may try to do so through formal notice-and-comment rulemaking. Full coverage of the case here.
American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority. An anti-Islam group sought to run an advertisement on D.C. metro buses and in metro stations that depicted a drawing of the prophet Muhammad. The transit authority refused to run the ad based on a policy prohibiting issue-oriented advertising. The group sued, alleging a violation of its First Amendment free speech rights. In an opinion by Judge Ginsburg (joined by Judge Srinivasan), a divided panel followed a three-week old precedent to conclude, as a threshold matter, that metro advertising is a “nonpublic forum” under First Amendment doctrine. The court then held that the policy is viewpoint-neutral, but it sent the case back to the district judge for a decision on whether the policy is “reasonable” under the Supreme Court’s June ruling in Minnesota Voters Alliance v. Mansky, which held that speech restrictions like the transit ad policy need to be governed by “objective, workable standards.” Judge Henderson dissented because she believed the case is moot. The lawsuit challenged a temporary advertising policy, but the transit authority subsequently adopted a permanent, more specific policy, and although the new policy serves the same goals as the temporary policy, Henderson said the change meant there is no longer a live controversy between the parties.
Hispanic Affairs Project v. Acosta. The government issues H-2A visas for foreign workers to come into the country on a temporary basis to perform agricultural work. Typically, these visas are supposed to last less than a year. But American ranchers frequently employ foreigners to work as livestock herders for periods of much longer than a year, and the Department of Labor and the Department of Homeland Security routinely extend those workers’ visas. The Hispanic Affairs Project, an advocacy group representing livestock herders, challenged various aspects of the regulations governing these herders. They argued that a special minimum wage for H-2A herders set by the Department of Labor is too low, and they said the agencies are violating the law by tacitly acknowledging that the need for foreign herders is permanent but continuing to classify them as temporary workers. In an opinion by Judge Millett (joined by Chief Judge Garland and Judge Srinivasan), the court affirmed summary judgment for the government on the minimum wage issue, finding that the method for setting the minimum wage for herders was not arbitrary or capricious. But the court allowed the lawsuit to proceed on the broader questions about whether foreign herders should be treated as temporary workers.
In re: Sealed Case. A defendant pleaded guilty to cocaine and marijuana distribution charges. As part of his plea agreement, he signed a generic waiver of his right to appeal his sentence. The district judge then sentenced him to 10 years in prison. Despite having signed the waiver, the defendant sought to appeal his sentence on the ground that he received ineffective assistance of counsel at the sentencing hearing. He said his lawyer should have argued for a lighter sentence based on the defendant’s minor role in the drug-trafficking conspiracy. The government argued that, by signing the appeal waiver, he had surrendered his right to bring this appeal. In an opinion by Judge Srinivasan (joined by Judges Wilkins and Sentelle), the court held that the generic appeal waiver in the plea agreement did not extinguish the defendant’s right to challenge his sentence based on ineffective counsel during a sentencing hearing that took place after the plea agreement. The court, however, did not resolve the merits of the defendant’s ineffective counsel claim; it sent the case back down to the district judge for further findings on that issue.
United States v. Machado-Erazo. Three MS-13 members operating in and around D.C. were convicted and sentenced for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act as well as several murder charges. All three challenged their convictions and sentences on various grounds. In an opinion by Judge Wilkins (joined by Judges Rogers and Katsas), the court denied every challenge. The court did find that the district judge abused his discretion in allowing an FBI agent to testify about cell-cite data because the government did not provide the defendants with a required written summary of the testimony beforehand, but the court held that the error was harmless. Rogers concurred separately to highlight the dangers of not providing defendants with written summaries of testimony, particularly because district judges serve as “gatekeepers” of testimonial evidence. Rogers noted that “the government’s conduct interfered with the district court’s ability to fulfill its gatekeeping role.”
People for the Ethical Treatment of Animals v. Department of Health and Human Services. In 2016, PETA filed a lawsuit against HHS challenging the department’s incomplete response to the group’s Freedom of Information Act request regarding the importation of nonhuman primates. PETA alleged that HHS “improperly withheld information” after the department released redacted documents pertaining to ten importers. The district judge determined that the department justifiably protected “confidential commercial information” by not disclosing details about “how many animals of which species were in each shipment, the size of their crates, the exporter shipping them, and the airline used.” On appeal, PETA continued to allege that such information was not confidential and also claimed that the district judge inappropriately approved a motion by HHS to keep the information of three importers redacted despite a contrary ruling at an earlier point in the proceedings. In an opinion by Judge Griffith (joined by Judges Srinivasan and Tatel) the court disagreed with both of PETA’s contentions and found that the disputed information was protected from disclosure because its public release presented a “likelihood of substantial competitive injury” to the relevant importers.
