FCC Asks DC Circuit to Delay Feb. 1 Net Neutrality Argument, Citing Shutdown

Some doubted the court would grant a stay request, particularly in light of recent court moves.

The U.S. Court of Appeals for the D.C. Circuit had said Monday it intends to hold oral arguments in February as scheduled in Mozilla v. FCC, No. 18-1051 (see 1901140048), and three court panels have recently denied other government requests for delaying oral argument or briefing. A D.C. Circuit update Tuesday said the Administrative Office of the U.S. Courts is prepared to use existing funding to keep the federal judiciary operating until at least Jan. 25.

"The Commission recognizes that the Court has indicated that arguments in February will proceed as scheduled," said its motion (in Pacer). "However, due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument consistent with the Antideficiency Act, 31 U.S.C. § 1342, as interpreted in guidance from the United States Department of Justice and this Court’s recent order in Kornitzky Group, LLC v. Elwell, No. 18-1160 (D.C. Cir. issued Jan. 9, 2019). In its guidance, the Department of Justice 'instructs government attorneys to request that active [civil] cases be postponed until funding is available.'"

The motion noted court guidance that a denial constituted "express legal authorization" for government attorney ADA compliance with the court schedule.

Feb. 1?

The Feb. 1 argument date may stick, some said before the stay was requested.

Daniel Lyons, Boston College associate law professor, "wouldn't be surprised if the DC Circuit denies" such a request, he emailed. "This isn't quite uncharted territory, but it's the edge of the map." The recent court news "makes it seem less likely that any such request would be granted," emailed Matt Wood, policy director of petitioner Free Press. The commission had needed to ask "real soon,” said Gigi Sohn, of the Benton Foundation, a petitioner challenging the FCC order. “Americans want and deserve net neutrality protections. My hope is that oral arguments move forward as currently scheduled in this critical case," emailed Lisa Hayes, general counsel of petitioner Center for Democracy & Technology, speaking after the stay request.

Sohn had said the FCC might want the delay to help General Counsel Tom Johnson prepare for the net neutrality reversal argument. Even if he's working, Sohn said he may need key attorney advisers to help him hone his arguments in moot court sessions. Another net neutrality advocate said the FCC may also want to better coordinate with DOJ on the case.

Free State Foundation President Randolph May had suggested the Feb. 1 argument would probably go ahead as scheduled. Johnson "will be ready to go whenever the court calls the argument," he emailed. "The Commission did a very good job of spelling out its factual and legal rationales in the [reversal] Order, so the oral argument roadmap is clear. All things equal, a moot court is helpful."

An ex-FCC general counsel expected Feb. 1 argument. "It's possible the en banc court could decide that it ought to change course and start postponing argument, but that seems unlikely," he emailed. "I think the court has given them clearance to say whomever is needed to prepare for the argument is essential." He thinks "any lawyers scheduled to argue on February 1, and anyone helping them to prepare, are essential" and thus exempt from furlough requirements.

Court Denials

A D.C. Circuit panel denied 2-1 an FAA motion to stay oral argument in a Jan. 9 order (in Pacer) in the Kornitzky case. Majority Judges Sri Srinivasan and Harry Edwards cited a DOJ shutdown plan to be ready to comply with court orders to argue. The judges said that understanding of the Anti-Deficiency Act "presumably governs" the FAA participation in the case. The court denied 16 government motions to delay proceedings during a 2013 shutdown, they added.

Dissenting Judge Raymond Randolph disputed denial rationales in light of ADA mandates under which the FAA said its attorneys "are prohibited from working, even on a voluntary basis, except in very limited circumstances, including 'emergencies involving the safety of human life or the protection of property.'" He said the majority opinion contained "no legal analysis" and relies on 2013 orders denying stays that "also contain no legal analysis." He cited a Jan. 3 D.C. Circuit panel grant (in Pacer) of a DOJ motion to stay a briefing deadline in Estate of Klieman v. Palestinian Authority, No. 15-7034, but the majority called that case "inapposite" because the government wasn't a party and seeking to delay its amicus filing.

Another panel denied 2-1 a motion to stay oral argument in a Tuesday order in Air Transport Association v. FAA, No. 18-1157. Majority Judges Judith Rogers and David Tatel offered little explanation. Randolph again dissented, citing two other recent D.C. Circuit orders granting government briefing extensions in USA v. Vasquez-Benitez (in Pacer) and in Franklin-Mason v. Richard Spencer, Secretary of the Navy (in Pacer). "It is obvious that our circuit has not settled upon any principled way of deciding these stay motions," wrote Randolph. "There is no analytical difference between a motion to stay a briefing schedule (as in this case) and a motion to postpone oral argument (as in Kornitzky)."

A third panel denied 3-0 a government motion to stay oral argument in a Monday order in People for the Ethical Treatment of Animals v. Department of Agriculture, No. 18-5074. In a concurring statement, Judge Gregory Katsas said the ADA would seem to bar DOJ attorneys from participating in the case, and called it troubling that one counterargument seemed to be "that activity not otherwise 'authorized by law' becomes so when this Court orders it." Despite the "misgivings," he joined the denial because the motion "presented no reason for disregarding" the "arguable precedential effect" of Kornitzky, and "presented no significant argument regarding" the "authorized by law" argument. The denial was joined by Chief Judge Merrick Garland and Judge Stephen Williams, who's also on the panel to hear the net neutrality rollback case.