Supreme Court to Tackle Who Can Sue Agencies Where and for What

With today's cert grants, the Court now has four cases that address the issue of where suits can be filed against federal agencies and who can file them.

This morning the Supreme Court denied certiorari in a case asking the justices to revisit Humphrey's Executor. Do not think for a moment that this means we are not in for a significant administrative law term. There are some potentially big cases in the pipeline, and the Court has quite a few cases this term that deal with important, if not headline-grabbing, administrative law questions.

In today's order list the Court accepted certiorari in multiple cases concerning the interpretation and application of the Clean Air Act's venue provisions. This means the Court now has four administrative law cases this term concerning where certain types of claims against federal agencies can be filed, and who can file them. Here's a quick rundown.

First, in Nuclear Regualtory Commission v. Texas the Court will consider whether parties who did not participate in the relevant administrative proceeding may challenge an agency order for exceeding the agency's statutory authority under the Hobbs Act. The U.S. Court of Appeals for the Fifth Circuit said yes (and subsequently held that the NRC lacks the delegated authority to permit temporary off-site storage of nuclear waste).

Next, in FDA v. R.J. Reynolds Vapor Co. the Court will consider the question "Whether a manufacturer may file a petition for review in a circuit (other than the D.C. Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer's products that is located within that circuit." Here again the Fifth Circuit answered the question in the affirmative. The FDA's position, as you might expect, is that the manufacturer plaintiff was engaged in an impermissible form of forum shopping by adding a local retailer to the case.

Today, the Court added more cases in this vein, all concerning the interpretation and application of the Clean Air Act's venue provisions. These provisions seek to channel petitions challenging EPA regulations of nationwide scope and application to the U.S. Court of Appeals for the D.C. Circuit while allowing challenges to more localized agency decisions to be filed regionally. Drawing that line is easier in some cases than in others.

In EPA v. Calumet Shreveport Refining, L.L.C the Court will consider whether challenges to the EPA's denial of petitions for exemptions from renewable fuel regulations must be filed in the D.C. Circuit. Here, again, the Fifth Circuit did not think so and denied the government's motion to transfer challenges filed by six refineries.

In Oklahoma v. EPA and PacifiCorp v. EPA (consolidated) the Court will consider a similar question, but where it is the EPA that is arguably engaged in venue shopping. Normally, challenges to state implementation plans (SIPs) under the Clean Air Act are filed in the regional circuit in which the state is located. Here, however, the EPA issued a single Federal Register notice finalizing actions with regard to multiple SIPs across multiple states, and the U.S. Court of Appeals for the Tenth Circuit concluded that challenges to portions of that EPA action had to be filed in the D.C. Circuit. Thus the question presented, as one of the petitioners put it, is "Whether the Environmental Protection Agency's disapproval of a State Implementation Plan may only be challenged in the D.C. Circuit under 42 U.S.C. § 7607(b)(1) if EPA packages that disapproval with disapprovals of other States' SIPs and purports to use a consistent method in evaluating the state-specific determinations in those SIPs."

In combination, these cases have significance beyond their rather narrow particulars. In decided these cases it is likely the justices will speak to some of the broader concerns about forum shopping in challenges to federal agency actions and give lower courts more guidance about how they should consider innovative efforts to bring such challenges in favorable jurisdictions. (Thus it may be no coincidence that several of these cases came out of the Fifth Circuit.) Put another way, each of these cases may concern narrow, technical questions of administrative law, but when taken together they could be quite significant.