Samuel E. Weitzman, CLS ’21
In Carlson v. Postal Regulatory Comm’n, recently appointed D.C. Circuit Judge Neomi Rao delivered her first opinion pertaining to administrative law.[1] Judge Rao worked extensively on administrative law issues before ascending the federal bench, both in academia and as the administrator of the Office of Information and Regulatory Affairs.[2] As such, she already has expressed her views on various topics in public. Like Justice Thomas (for whom she clerked)[3] and Justice Scalia (whom she described as a “remarkable man” with whom she agreed “about many matters of legal interpretation”),[4] she is highly critical of congressional delegation to administrative agencies,[5] favors an expansive view of the President’s “sphere of action,”[6] and generally supports deregulation.[7] For the first time, however, legal observers have some sense of how she will rule.
Carlson’s facts were more whimsical than remarkable. The pro se petitioner was Douglas F. Carlson, “a postal customer and watchdog.”[8] Carlson challenged the Postal Regulatory Commission’s (PRC) five-cent increase in the price of “Forever Stamps” (from 50 cents to 55 cents) as arbitrary and capricious under the Administrative Procedure Act.[9] Specifically, Carlson argued that – in promulgating Order 4875 – the PRC failed to (a) consider all of the relevant statutory factors and objectives specified in the Postal Accountability and Enhancement Act (PAEA); (b) explain its justification for the price hike consistent with the requirement of “reasoned decisionmaking”; or (c) respond adequately to public comments, including Carlson’s.[10] The unanimous three-judge panel agreed, opting to vacate the new rates for first-class postage while leaving the rest of Order 4875 in place.[11]
Whether or not the D.C. Circuit was right in its determination is immaterial for present purposes: this blog is about law, not philately. Of greater interest is how Judge Rao reached her conclusion – and what it portends for her jurisprudence. Notably, in distinguishing between rulemaking and adjudication, Judge Rao quoted twice from Justice Scalia’s solo concurrence in Bowen v. Georgetown Univ. Hosp.[12] On the second occasion, she neglected to signal that her citation came from a single jurist rather than a majority of the Supreme Court – perhaps a mere Bluebooking error, but telling nonetheless.[13] The difference between the majority and concurrence’s views in Bowen was subtle yet significant. Speaking through Justice Kennedy, eight members of the Court held that agencies cannot promulgate legislative rules with retroactive effect unless Congress provides for that power using “express terms.”[14] Justice Scalia, meanwhile, maintained that administrative rules could never apply retroactively: for him, rules were exclusively prospective, while adjudications were wholly retroactive.[15] Bowen remains good law, and Justice Scalia’s concurring opinion has received its share of scholarly criticism.[16]
Judge Rao’s suggestion that, instead, Justice Scalia’s interpretation is the law of the land provides two insights into her approach. First, in adhering to Justice Scalia’s rigid delineations of APA categories, Judge Rao exhibited her formalist predilections. This demonstration was no revelation, following as she does in the footsteps of Justices Scalia and Thomas. Her formalism manifested itself elsewhere in the opinion, too, including through her textualist mode of rejecting the PRC’s interpretation of the PAEA.[17] Second, Judge Rao evinced a willingness to disregard precedent in favor of adopting a position hewing closer to her ideological preferences. She is hardly alone in doing so; jurists often borrow from non-controlling opinions to bolster their rhetoric. And sometimes, the concurrence or dissent really does become the doctrinal standard.[18] Perhaps Judge Rao is just ahead of the curve on rejecting Bowen presumption in favor of a categorical approach. If not, however, she risks wandering into areas unblessed – or even precluded – by prevailing doctrine.
How one feels about these tendencies may depend on how one conceives of the law, and thus one may either welcome or worry about these facets of Judge Rao’s jurisprudence. One thing is certain, however: her implicit rejection of Bowen will be just the first of many contributions Judge Rao makes to administrative law from her new seat on the federal bench.
[1] Carlson v. Postal Regulatory Comm’n, No. 18-1328, 2019 WL 4383260 (D.C. Cir. Sept. 13, 2019). Carlson was Judge Rao’s second opinion authored for the D.C. Circuit. Her first opinion did not involve any issues of administrative law. See Dist. No. 1, Pac. Coast Dist., Marine Eng’rs Beneficial Ass’n, AFL-CIO v. Liberty Mar. Corp., 933 F.3d 751 (D.C. Cir. 2019).
[2] Karen Zraick, Neomi Rao Will Replace Brett Kavanaugh on Key Appeals Court, N.Y. Times (Mar. 13, 2019), https://www.nytimes.com/2019/03/13/us/politics/neomi-rao-confirmed.html.
[3] Id.
[4] Remembering Justice Antonin Scalia, Antonin Scalia L. Sch. (last visited Sept. 25, 2019), https://www.law.gmu.edu/news/2016/scalia_tribute.
[5] See Neomi Rao, Administrative Collusion: How Delegation Diminishes the Collective Congress, 90 N.Y.U. L. Rev. 1463 (2015).
[6] See Neomi Rao, The President’s Sphere of Action, 45 Willamette L. Rev. 527 (2009). See also Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205 (2014).
[7] See Neomi Rao, The Trump Administration’s Deregulation Efforts are Saving Billions of Dollars, Wash. Post. (Oct. 17, 2018), https://www.washingtonpost.com/opinions/the-trump-administration-is-deregulating-at-breakneck-speed/2018/10/17/09bd0b4c-d194-11e8-83d6-291fcead2ab1_story.html.
[8] Carlson, 2019 WL 4383260, at *3. Carlson has also been described as “sort of a Ralph Nader of the mail.” See Carl Nolte, Stamping Out Mail Problems: Civilian Advocate Addresses Service at the U.S. Postal Service, S.F. Chron. (Sept. 4, 2001), https://www.sfchronicle.com/bayarea/article/PROFILE-Doug-Carlson-Stamping-out-mail-2882873.php.
[9] Carlson, 2019 WL 4383260, at *4.
[10] Id. at *4.
[11] Id.
[12] Id. at *1–2 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 219 (1988) (Scalia, J., concurring)).
[13] Id. at *2 (quoting Bowen, 488 U.S. at 218 (Scalia, J., concurring)).
[14] Bowen, 488 U.S. at 208.
[15] Id. at 216–25 (Scalia, J., concurring).
[16] See, e.g., Ronald M. Levin, The Case for (Finally) Fixing the APA’s Definition of “Rule,” 56 Admin L. Rev. 1077, 1085–88 (2004); William F. Luneberg, Retroactivity and Administrative Rulemaking, 1991 Duke. L.J. 106, 143–47 (1991); Frederick Schauer, A Brief Note on the Logic of Rules, with Special Reference to Bowen v. Georgetown University Hospital, 42 Admin L. Rev. 447, 449–55 (1990). One author recently claimed that “Justice Scalia’s concurrence is frequently referred to as an explanation of the law.” However, the author provided no evidence for this bare assertion. See William C. Neer, Discerning the Retroactive Policymaking Powers of the United States Patent and Trademark Office, 71 Admin. L. Rev. 413, 426 (2019).
[17] Carlson, 2019 WL 4383260, at *8–10.
[18] See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634–55 (1952) (Jackson, J., concurring).
