Last Friday was a Good Day for Those Who Want to Litigate Against the Federal Government.

Last Friday, the Supreme Court delivered a trio of decisions making it easier to litigate against the federal government.  The facts and law in each case matter, and as is often the case when the Supreme Court “decides” an issue, much remains to be seen.  That said, it’s hard to see how the score on Friday wasn’t 3 for regulated industry and 0 for the federal government.

In a pair of 7-2 decisions authored by Justice Kavanaugh, the Court took the more expansive view of who can sue the government.

• In FDA v. R. J. Reynolds Vapor Co., the Court held that the Tobacco Control Act’s language permitting “any person adversely affected” by a denial order permitted not just the applicant, but retailers and an association of retailers to seek judicial review of the order.  While in the present case, the manufacturer, retailer, and trade association were all part of the same lawsuit, nothing in the Court’s decision requires that the applicant be a party to such a challenge.  Nor does the analysis limit the statute’s scope to retailers.  The right of consumers to bring such a statutory action is not addressed, although consumers are much discussed in analyzing prior precedent, but it is hard to see from the Court’s analysis why a consumer disappointed by a denial order would not be able to sue where they resided.
• In Diamond Alternative Energy, LLC v. EPA, the Court held that producers of automobile fuels had Article III standing to challenge EPA’s approval of state regulations requiring automobile manufacturers to manufacture more electric and fewer gasoline powered vehicles. While the legal issue and analysis was different than in FDA v. RJ Reynolds, the outcome was the same, additional parties had the right to challenge government regulation.

Finally, in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp., a 6-3 majority held that notwithstanding statutory language providing “exclusive jurisdiction” in the courts of appeals to set aside final orders of the FCC, a party could challenge the validity of an agency’s interpretation in the district court. In sum, the Court concluded that pre-enforcement review in the courts of appeals was optional but not mandatory, and a party could wait to litigate the issue in an enforcement proceeding.  While this case interpreted the Hobbs Act, the FDC Act, CSA, and other statutes that more directly affect blog readers also contain similar exclusive jurisdiction provisions for certain agency orders. The Court’s analysis preserving the right to contest agency interpretations in district court enforcement proceedings logically extends to those statutes as well.

We’ll be watching to see how these cases play out in the lower courts as parties in litigation with the federal government test their limits.