Choose Carefully: Thinking Strategically About Venue When Mounting Agency Rule Challenges
The traditional view that the D.C. Circuit should be the forum of choice for petitioners challenging agency action is ripe for re-examination.
April 25, 2019 at 01:55 PM
5 minute read
The D.C. Circuit is thought of as the epicenter of federal administrative law. Due in part to this reputation, it has become the default forum for petitioners challenging agency rules or adjudications. But the traditional view that the D.C. Circuit should be the forum of choice for petitioners challenging agency action is ripe for re-examination.
For some types of agency challenges, petitioners have no venue choice to make because the D.C. Circuit is the statutorily mandated forum. For example, the Clean Air Act explicitly provides that petitions for review challenging rules promulgated under certain provisions of that statute must be filed in the D.C. Circuit. But other agency statutes provide the petitioner with a choice of forums. The Toxic Substances Control Act, for instance, permits anyone adversely affected by an Environmental Protection Agency rule listing a particular substance as toxic to file a petition for review in either the D.C. Circuit or in the regional circuit in which they reside. The Occupational Safety and Health Act offers even more venue options for any person aggrieved by a final order issued under certain provisions of that statute; they may challenge that order either in the circuit in which the violation occurred, the employer's home circuit, or in the D.C. Circuit. Similar choice-of-venue provisions exist in many other agency statutes.
These choice-of-venue provisions provide an opportunity for strategic litigation thinking that can be missed by petitioners that default to the D.C. Circuit as the traditional forum for administrative challenges. The other eleven regional circuits—each with their own body of administrative law—merit serious consideration as a superior forum for challenging a particular agency action. Since companies and advocacy groups with a wide geographic distribution often band together to mount a challenge to an agency rule, many of those regional circuits will be live options as the forum of choice for a given rule challenge. Instead of defaulting to the D.C. Circuit in such a situation, the better course is to carefully review all of the candidate circuits' precedent both on deference to agencies generally and on any issues raised by the particular rule challenge. Only then can a petitioner make an informed decision about the best circuit in which to file.
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