Tap… Tap… Is this thing on?
In an uncharacteristic moment of weakness, Mr. Likko gave me a set of keys to this site. Perhaps he was drunk. ((Thass nonshense! — BL)) Perhaps he expected me to be more mindful of that timeless proviso from the wisest of the Marx Brothers: “I don’t care to belong to any club that will have me as a member.” Whatever the explanation, I now have keys. So I write. Also, because the article I’m throat-clearing in front of touches on political opinions, I should disclose myself as an unabashed tax-and-spend liberal, though perhaps the type Phil Ochs once sang about, who believes strongly that the government can and should take from the well-off to assist the needy.
Today’s topic (inspired by Short Circuit) is an article about U.S. Army Corps of Engineers v. Hawkes published by the same group.* Generally, I read Short Circuit because the summaries are great and the politically motivated asides are easy to ignore.** This article, though, takes a well-earned victory lap after securing an order that I believe everyone should support.
*Lest you think my title is facetious, both the Institute for Justice (google blurb: “An U.S. libertarian public interest law firm. Dedicated to advance economic liberty, school choice, property rights, and free speech.”) and the Pacific Legal Foundation (wikipedia: ” the first and oldest conservative/libertarian public interest law firm in the United States”) appear to be unabashedly libertarian.
**For example, the June 3rd summaries accurately describe the Ninth Circuit’s rebuke of Arizona’s attempt to punish the Arizona Students’ Association for its speech, but can’t stop without noting the case makes “[n]o mention of the First Amendment rights of students compelled to fund advocacy with which they may not agree, who are not parties to the case.”
At issue in the case is a decision by the Army Corps of Engineers designating the plaintiff’s land as “waters of the United States” and therefore subject to significant federal regulation. Plaintiff therefore faced a choice. It could (1) seek permission to operate under those regulations (with evidence showing that permission would be expensive/time-consuming to seek and unlikely to be obtained); (2) ignore the regulations and defend against potential enforcement; or (3) challenge the designation in Court. It chose door #3, and the Supreme Court has now allowed it to proceed with that challenge.
At issue is the question of reviewable final agency actions. To be “final,” an agency action must meet two tests. First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow. (the first requirement was essentially admitted). Final agency actions can then be reviewed only if there are no adequate alternatives to that review in court. “Adequate” being the key word.
The Supreme court held that the decision was final, using a commonsense approach to the consequences of the Corps of Engineers’ determination. It noted that a finding that water is NOT “waters of the United States,” called a negative finding, “both narrows the field of potential plaintiffs and limits the potential liability a landowner faces for discharging pollutants without a permit.” The positive finding in this case must, at minimum, therefore “represent the denial of the safe harbor that negative [findings] afford.” It then held that the decision was reviewable because neither door #1 (“whatever pertinence [the permit application process] might have to the issuance of a permit, none of it will alter the finality of the [positive finding], or affect its suitability for judicial review”) nor door #2 (“parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of ‘serious criminal and civil penalties.'”) were adequate alternatives. As a result, the Eight Circuit’s reversal of the District Court’s dismissal was affirmed, and Plaintiffs can proceed to the merits of their challenge to the positive finding.
This Liberal’s Thoughts
I won’t rehash the article, or quibble with its more ideological editorial comments, because I think it is certainly right that the outcome “is an important victory for . . . landowners everywhere who seek to avoid a Hobson’s choice between going through a costly, time-consuming permitting process with an unknown outcome or facing civil and criminal penalties.” More generally, I think that when the government makes a final decision that harms a party, that party should be able to challenge the validity of that decision, and I agree with my libertarian friends that the Court can be too hostile to that process.
Here’s another example–from my own practice–that may help explain why. I represented (pro-bono) an asylum applicant who had entered the country without inspection many years ago,* fleeing from specific persecution on account of his political beliefs by South American guerillas.** Some time after he did so, he linked up with a public aid group and submitted an asylum application. At the time he did so, this meant he automatically received a work authorization and was therefore both present and employed in the country legally, but with no long-term right to remain. After he completed his application, President Clinton (the male one) signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which allowed for summary deportation of previously-deported immigrants, but did not apply retroactively. Years after that, the government finally got around to my client’s asylum application and promptly threw him into summary deportation proceedings. Although he had defenses to deportation separate from his asylum claim (for practitioners: his case was strong enough he had a real shot at mandatory withholding/CAT relief), the government’s incorrect decision to apply IIRIRA to my client’s application immediately foreclosed his ability to obtain asylum. And his remaining defenses had the twin virtues of being strictly less valuable (asylum is permanent, mandatory relief is temporary) and strictly harder to obtain. It took several years, retention of pro-bono counsel (me), two Ninth Circuit appeals, and a successful motion for reconsideration, to get a Court to agree to review the validity of the government’s incorrect decision to apply IIRIRA. In my view, there should never have been any jurisdictional issue, and my client should have been readily able to challenge the initial determination (which he would have won easily***).
The parallels between the two cases seem obvious (at least to me!). In both cases, the Government took a debatable final action. In both cases that action restricted the other party’s rights. In both cases, the other party still had some remaining rights it could fight for. And in both cases, I see no value in forcing the other party to fight for those remaining rights before challenging the final action restricting them. From a libertarian’s perspective, this is about runaway regulators unconstitutionally exercising legislative (or non-federal) powers. From mine, its about fairness to litigants and a desire to make sure that the government acts fairly rather than hiding behind technical and unjustified jurisdictional barriers. That said, maybe I’m missing something, or there is some unintended consequence here that the common law collective can point out.
*This was his second time fleeing the same oppression, the first time he was caught at the border, denied counsel, and then coerced into “voluntarily” consenting to be deported. The INS at the time was notorious for doing this routinely, ultimately resulting in serious civil injunctions in the nineties.
**Without spending too much time on the story, let’s just say he had a 100% good claim to asylum, as evidenced by the fact that his wife and child received asylum on the same story because they were not tainted by the procedural morass just described.
***When we won the motion to reconsider, and the Ninth Circuit agreed it had jurisdiction over our appeal, the Government swiftly exercised its discretion to grant asylum. Justice was done, but nobody likes a mooted appeal that had a high likelihood of success.