SG Asks High Court to Vacate, Remand DC Circuit Title II Ruling; Some Think Grant Likely
The solicitor general asked the Supreme Court not to review the merits of cert petitions appealing the U.S. Court of Appeals for the D.C. Circuit ruling that upheld the previous FCC's 2015 Title II Communications Act net neutrality order. Given the current FCC's January reversal order, the SG asked justices to grant cert but vacate the D.C. Circuit judgment and remand the 2015 order litigation with directions to declare related legal challenges moot, or to consider the effect of the 2018 order. Some thought the SG's request had a good chance.
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“I expect the Court will go along with the government’s request," emailed Randolph May, Free State Foundation president. "This really does seem to be a pretty classic case of mootness. By virtue of the FCC latest order, the positions of the litigants have been completely turned around, so I think the Court will recognize that they should fight out the new order first in the D.C. Circuit." But Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counsel, said it would take five justices to vacate the D.C. Circuit ruling when the court only has eight justices, pending nominee Brett Kavanaugh's confirmation (see 1807100020), complicating the request.
D.C. Circuit affirmation of Title II regulation "does not warrant this Court’s review because the FCC has now issued a new order that supersedes the 2015 Order and repeals its conduct rules," said the SG response of the DOJ and FCC Thursday in Daniel Berninger v. FCC, No. 17-498 and consolidated cases. "Questions concerning the procedural and substantive validity of the 2015 Order lack continuing practical significance. Instead, the legal questions concerning the proper regulatory treatment of broadband services will be resolved in the pending challenges to the 2018 Order." Those challenges are also before the D.C. Circuit in Mozilla v. FCC, No. 18-1051.
The American Cable Association, a cert petitioner, backed the SG request. “The government is making the right arguments in light of the FCC’s old rules having been superseded," emailed Ross Lieberman, senior vice president-government affairs. Petitioners AT&T, CTIA, NCTA, TechFreedom and USTelecom didn't comment Friday.
All the petitioners want the Supreme Court to grant cert, said Berninger, an internet entrepreneur and founder of VCXC, in an interview. "The question is for what purpose." He said the justices should review the 2015 order on the merits. "There’s an elephant in the room, and the elephant is whether Chevron gives [the FCC] the authority to reclassify broadband," he said, referring to the doctrine of judicial deference to reasonable expert agency decisions on ambiguous statutes. The DOJ and FCC are "assuming Chevron," he said. "In the present case, Chevron comes in the form of Brand X," the 2005 Supreme Court ruling upholding the FCC's Title I cable modem classification, he noted. "The D.C. Circuit went to town on citing Brand X. The Supreme Court could say, 'That’s our case. We get to decide what Brand X means.'" He said justices interested in overturning or reining in Chevron "need a vehicle, and my argument is here you have a ready-made vehicle."
"We were disappointed that the government brief failed to mention the Congressional Review Act action," emailed Anthony Caso, of the Center for Constitutional Jurisprudence at Chapman University School of Law, who represents Berninger. "The Senate has voted to overturn the 2018 regulation and the measure is awaiting House action." The "larger problem is that the government is arguing that it can change its mind on the meaning of an Act of Congress with every change in administration. This is the root problem with this type of Chevron deference," he said. "We hope that the Court recognizes that the action is not moot so long as the challenge to the 2018 regulations is ongoing (either in court or through the Congressional Review Act) that presents a risk that the 2015 regulation will come back."
The 2015 order case "is not worthy of cert for a lot of reasons," including that it's a "garden variety" agency case, said Schwartzman. As for questions about judicial deference, he said, "This is the wrong case to consider that. The Supreme Court has already said in Brand X that Chevron applies." He expects Kavanaugh, even if confirmed in time, to be recused because he dissented in the case at the D.C. Circuit: While it only takes four justices to grant cert, "they don’t want the chance of a 4-4 split" on such a case.
"I suspect the government will be successful," emailed Enrique Armijo, Elon University School of Law academic dean and associate professor. "The Supreme Court doesn’t usually grant review of FCC rules that have been superseded.” Gus Hurwitz, University of Nebraska law professor, emailed that "there is a rather good chance that the Court will follow one of the paths that the government requests, given that it's not asking the Court to weigh in on the substantive issues but rather is asking the Court to apply well established procedural precedent to address a clear sort of logical inconsistency that the precedent is intended to address."