Adapted from an Apr 1, 2020 article | Original We are the Evidence article here
Under federal law, when lawsuits are submitted in different Federal Courts of Appeal against the same government agency’s decision, the cases are generally consolidated and transferred to one of the Courts. The venue is typically determined by a multi-jurisdictional panel via a lottery process. For the two lawsuits opposing FCC Order 19-126, the Environmental Health Trust filed their suit on Fri Jan 31, 2020 in the Federal DC Circuit Court of Appeals, while the Children’s Health Defense Fund filed their suit on Feb 2, 2020 in the Federal Ninth Circuit Court of Appeals.
The FCC, apparently, devised a nefarious plan that would allow it to control timing and venue and even perhaps block judicial review, altogether. It purposefully delayed publication to prevent the lottery and push venue to the court it prefers – the DC Circuit – and potentially even obtain dismissal or a long delay until it finally got around to publishing notice. The FCC’s efforts to get the case out of the Ninth Circuit and before the DC Circuit strongly indicates FCC thinks it will do better there and would have a harder time defending the decision before the Ninth circuit.
On 2/12/2020 the FCC submitted a Motion to Transfer, asking the Ninth Circuit to transfer CHD’s case to the DC Circuit claiming that because EHT’s submitted the case two days before CHD, EHT has won a “race to the courthouse” and the cases should be heard in the DC Circuit Court. EHT submitted an Amicus Brief in support of the FCC motion to transfer our case to the DC circuit based on the same argument. CHD replied that the “race” never started because the “starting gun” (Federal Register publication) had never sounded, and, indeed, there was not supposed to be a race at all.
Scott McCollough, the attorney who leads CHD’s case together with Robert F. Kennedy Jr., saw through the FCC’s effort to game the rules, and quickly responded. CHD submitted a “Motion for Affirmative Relief and an Opposition to Motion to Transfer” on 2/18/20. CHD’s motion claimed the FCC was purposely withholding publication in the Federal Register. It further explained that under the courts’ procedural rules and statutes once Federal Register publication happens, petitioners have a 10 day window to invoke the lottery process. This means that where the cases should be heard should not be based on a “race to the courthouse.” The Motion states:
“The Motion to Transfer is the FCC’s opening move in a game of “gotcha.” If the FCC prevails on its motion the Commission will promptly reverse course, abandon its apparent contention before this Court that the “Order” is presently reviewable, and tell the D.C. Circuit that since there has been no Federal Register publication both cases are “premature” and must be dismissed. If the D.C. Circuit agrees the FCC will succeed in completely immunizing the “Order” from any review whatsoever until the FCC gets around to publishing notice, if it ever does so.”
The FCC obviously realized its gambit would not work, so it finally stopped trying to delay and went forward with publication. CHD’s efforts won the day. We forced the FCC to publish in the Register; prevented the FCC from being able to dismiss the cases claiming they are premature; and ensured that the proper process to set venue is used: a Multi-Jurisdictional panel lottery process (rather than the FCC) should now decide which court will hear CHD’s & EHT’s cases. The 4/1/20 publication means the two review petitions will soon be able to move forward to consideration on the merits.