946 F.3d 553
9th Cir.2019Background
- The Congressional Review Act (CRA) provides an expedited congressional procedure to disapprove federal rules (disapproval provision) and bars an agency from reissuing a disapproved rule in substantially the same form unless authorized by post-disapproval legislation (reenactment provision).
- In 2016 the U.S. Fish & Wildlife Service issued the "Refuges Rule," restricting Alaska predator-control hunting methods on certain national wildlife refuges; Interior submitted the rule to Congress on October 5, 2016.
- Because submission occurred near the end of the 114th Congress, the CRA carryover provision applied; in early 2017 Congress passed, and the President signed, a joint resolution disapproving the Refuges Rule under the CRA.
- Interior rescinded the Refuges Rule pursuant to the joint resolution; the Center for Biological Diversity (CBD) sued to compel reinstatement, asserting (a) the joint resolution and CRA violated the Take Care Clause, (b) the CRA reenactment provision violated the nondelegation doctrine, and (c) Interior acted ultra vires because the rule was ineligible for CRA review under §801(d)(1).
- The district court dismissed CBD's amended complaint for lack of standing and failure to state a claim; the Ninth Circuit affirmed in part and dismissed in part, concluding it lacked jurisdiction over CRA statutory claims and that CBD's constitutional claims were not plausible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Standing to challenge CRA's reenactment provision (nondelegation) | Reenactment provision prevents Interior from reissuing the Refuges Rule (or similar rule), injuring CBD members' interests in observing wildlife | CBD's alleged injury is speculative because it depends on future agency action that may never occur | No standing; claim dismissed for lack of injury in fact |
| 2) Whether CRA's jurisdiction-stripping clause bars judicial review of constitutional claims | CRA §805 does not clearly preclude review of colorable constitutional claims; courts should hear Take Care Clause challenge | §805 facially precludes review of "any" action under the CRA | Clause does not clearly bar constitutional review; court may decide constitutional claim |
| 3) Whether the joint resolution violated the Take Care Clause (separation of powers) | Joint resolution commandeers Executive's duty to faithfully execute statutes by nullifying an agency rule Interior deemed necessary | A validly enacted joint resolution changes substantive law via bicameralism and presentment and therefore does not violate the Take Care Clause | Held that the joint resolution was validly enacted and did not violate the Take Care Clause; dismissal for failure to state a plausible claim |
| 4) Whether the CRA statutory scheme (§801(d)(1)) was violated because the Refuges Rule took effect before the required submission, rendering the joint resolution invalid | Refuges Rule took effect before Interior's report submission, so it was ineligible for carryover disapproval under §801(d)(1) and the joint resolution is invalid; Interior acted ultra vires | The claim challenges an action "under" the CRA (Congress's enactment of the joint resolution), and §805 bars judicial review of statutory challenges under the CRA | Court lacks jurisdiction under §805 to review CRA statutory claim; claim dismissed |
Key Cases Cited
- J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928) (establishes intelligible principle test for delegation)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, actual or imminent injury)
- Whitmore v. Arkansas, 495 U.S. 149 (1990) (speculative or possible future injuries are insufficient for standing)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013) (threatened injury must be certainly impending for standing)
- Elgin v. Dep't of Treasury, 567 U.S. 1 (2012) (heightened standard when a statute purports to deny forum for colorable constitutional claims)
- Webster v. Doe, 486 U.S. 592 (1988) (Congressional intent to preclude constitutional review must be clear)
- Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170 (9th Cir. 2012) (Congressional enactment can effectively amend substantive law and direct an agency's action)
- Montanans For Multiple Use v. Barbouletos, 568 F.3d 225 (D.C. Cir. 2009) (courts lack jurisdiction over statutory claims arising under the CRA)
- In re Border Infrastructure Environmental Litigation, 915 F.3d 1213 (9th Cir. 2019) (statutory jurisdictional bars apply when the claim challenges an action taken pursuant to the statutory provision)
- Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) (congressional intent to preclude judicial review must be fairly discernible)