Courts often grapple with the question of when an agency’s action is final for various purposes. And the answer can be different for different purposes–particularly since various statutory provisions related to judicial review use different words or phrases.
For example, 47 U.S.C. s. 402 allows parties to seek review of certain FCC actions within “thirty days from the date upon which public notice is given of the decision or order complained of.” The Hobbs Act, 28 U.S.C. s. 2344, though, allows review of a “final order…within 60 days after its entry.” And the FTC Act, 15 U.S.C. s. 57a(e) allows parties to seek review “not later than 60 days after a rule is promulgated.”
This week, the Fifth Circuit had to grapple with yet another phrase– what it means for a rule to be “issued.”
28 U.S.C. § 2112 governs petitions directly filed in courts of appeals “to enjoin, set aside, suspend, modify, or otherwise review or enforce orders of administrative agencies, boards, commissions, and officers.” That statute does not provide a statute of limitations for such actions, but it does address other procedural topics. One such topic is what happens when actions challenging a covered order in multiple courts of appeals. The statute provides that “If within ten days after issuance of the order the agency, board, commission, or officer concerned receives, from the persons instituting the proceedings, the petition for review with respect to proceedings in at least two courts of appeals,” the agency must “promptly after the expiration of the ten-day period specified” forward all of those petitions to the Judicial Panel on Multidistrict Litigation (JPML), which will then conduct a lottery amongst all of those courts of appeals, and assign all of the petitions — and any filed after that ten-day period– to that circuit.
On October 16, the FTC announced its “Click-to-Cancel” Rule, which I previously posted about here, Within days, industry groups had conveniently filed petitions for review in the Fifth, Sixth, Eighth, and Eleventh Circuits–widely considered the four most conservative courts of appeals. But the FTC refused to notify the JPML of the pending petitions, asserting that the ten-day period would not begin to run until the rule was published in the Federal Register–which did not happen for nearly a month.
The trade groups that had sued in the Fifth Circuit petitioned that court for a writ of mandamus compelling the agency to notify the JPML, and on Tuesday, the Fifth Circuit granted that petition in an unpublished order. The court held that a rule is “issued” when it is made “publicly known.” And while publication in the Federal Register can satisfy that requirement, so can a press release or website posting- such as the FTC’s announcement here. Thus, the 10-day period expired on October 26, and the FTC had an obligation to notify the JPML “promptly” after that date–which it did not do.
