Petition for Rehearing — Peter Williams, Petitioner v. Environmental Protection Agency, et al.

Supreme Court briefJul 17, 2024

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No. 23-1059

In the Supreme Court of the United States

PETER WILLIAMS,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITIONER’S SUPPLEMENTAL BRIEF

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Ave. NW

Suite 700-1A

Washington, DC 20036

202-355-9452

ljoseph@larryjoseph.com

Counsel for Petitioner

TABLE OF CONTENTS

Table of Authorities..................................................... i

Petitioner’s Supplemental Brief ................................ 1

Statement of the Case ................................................ 2

Legal Background ................................................ 3

Factual Background............................................. 2

Reasons to Grant Rehearing ...................................... 5

I. Corner Post clarified when an APA claim

arises. ................................................................... 6

II. Corner Post raises questions of timeliness for

the Court of Appeals to answer in the first

instance. ............................................................... 7

Conclusion .................................................................. 9

TABLE OF AUTHORITIES

Cases

Adamo Wrecking Co. v. U.S.,

434 U.S. 275 (1978) ............................................... 1

Am. Rd. & Transp. Builders Ass'n v. EPA,

588 F.3d 1109 (D.C. Cir. 2009) ............................. 1

Amoco Oil Co. v. EPA,

501 F.2d 722 (D.C. Cir. 1974) ............................... 3

Baltimore Gas & Elec. Co. v. ICC,

672 F.2d 146 (D.C. Cir. 1982) ............................... 7

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) ............................................... 8

Corner Post, Inc. v. Bd. of Governors of the Fed.

Rsrv. Sys., 2024 U.S. LEXIS 2885 (July 1,

2024) ............................................................ 1-2, 5-8

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ................................................ 7-8

Cutter v. Wilkinson,

544 U.S. 709 (2005) ............................................... 9

Edison Electric Institute v. EPA,

996 F.2d 326 (D.C. Cir. 1993) ............................... 1

Ethyl Corp. v. EPA,

541 F.2d 1 (D.C. Cir. 1976) ................................ 3-4

Friedman v. FAA,

841 F.3d 537 (D.C. Cir. 2016) ............................... 6

Garcia v. Veneman,

224 F.R.D. 8 (D.D.C. 2004) ................................... 2

Grp. Against Smog & Pollution, Inc. v. U.S. Envtl.

Prot. Agency, 665 F.2d 1284 (D.C. Cir. 1981) ...... 1

Harrow v. DOD,

144 S.Ct. 1178 (2024) .................................... 1, 6, 9

Interstate Commerce Comm’n v. Bhd. of

Locomotive Eng’rs, 482 U.S. 270 (1987) ............... 5

Investment Co. Inst. v. Bd. of Governors, Fed’l

Reserve Sys., 551 F.2d 1270 (D.C. Cir. 1977) ....... 9

Lawrence v. Chater,

516 U.S. 163 (1996) ............................................... 9

Loper Bright Enters. v. Raimondo,

2024 U.S. LEXIS 2882 (June 28, 2024) ................ 8

Louisiana Envtl. Action Network v. Browner,

87 F.3d 1379 (D.C. Cir. 1996) ............................... 7

Motor & Equipment Manufacturers Association v.

EPA, 142 F.3d 449 (D.C. Cir. 1998)...................... 1

Nat’l Asphalt Pavement Ass’n v. Train,

539 F.2d 775 (D.C. Cir. 1976) ............................... 4

Nat’l Labor Relations Bd. Union v. Fed. Labor

Relations Auth., 834 F.2d 191 (D.C. Cir. 1987) ... 5

Nat'l Mining Ass'n v. United States Dep't of the

Interior, 70 F.3d 1345 (D.C. Cir. 1995) ................ 1

iii

Natural Resources Defense Council v. NRC,

666 F.2d 595 (D.C. Cir. 1981) ............................... 1

Olijato Chapter, Navajo Tribe v. Train,

515 F.2d 654 (D.C. Cir. 1975) ............................ 8-9

Sierra Club v. Thomas,

828 F.2d 783 (D.C. Cir. 1987) ............................... 6

West Penn Power Co. v. United States Envtl. Prot.

Agency, 860 F.2d 581 (3d Cir. 1988) ..................... 5

Statutes

Administrative Procedure Act,

5 U.S.C. §§ 551-706 ............................................ 3-6

5 U.S.C. § 553(e) .................................................. 5, 8-9

5 U.S.C. § 555(b) ...................................................... 5-6

5 U.S.C. § 702 ............................................................. 6

5 U.S.C. § 704 ............................................................. 6

28 U.S.C. § 2344 ......................................................... 3

28 U.S.C. § 2401(a) ..................................................... 7

Clean Air Act,

42 U.S.C. §§7401-7671q .............................. 1-4, 6-9

42 U.S.C. § 7607(b)(1) ................................. 1, 3, 5, 7-8

42 U.S.C. § 7607(d) .................................................. 4-5

42 U.S.C. § 7607(d)(1) ............................................. 4-6

42 U.S.C. § 7607(d)(1)(a)-(u) ...................................... 4

42 U.S.C. § 7607(d)(5) ................................................ 5

42 U.S.C. § 7607(d)(7)(B) ........................................... 5

42 U.S.C. § 7675(e)(2)(D)(i) ........................................ 6

Clean Air Act Amendments of 1977,

PUB. L. NO. 95-95, 91 Stat. 685 (1977) .......... 3-4, 9

Clean Air Act Amendments of 1990,

PUB. L. NO. 101-549, 104 Stat. 2399 (1990) .. 3-4, 6

Legislative History

H.R. REP. 94-1175 (1976)............................................ 9

S. REP. 95-294 (1977).................................................. 9

Rules, Regulations and Orders

S.CT. R. 15.8 ............................................................... 1

Other Authorities

54 C.J.S., Limitations of Actions §7 .......................... 8

4 WRIGHT, FEDERAL PRACTICE & PROCEDURE

§1056...................................................................... 7

PETITIONER’S SUPPLEMENTAL BRIEF

Pursuant to Rule 15.8, petitioner Peter Williams

respectfully files this supplemental brief on Corner

Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys.,

2024 U.S. LEXIS 2885 (July 1, 2024) (No. 22-1008),

which came out a week after Williams petitioned this

Court to rehear the denial of his petition of a writ of

certiorari based on Harrow v. DOD, 144 S.Ct. 1178

(2024). Harrow establishes the Clean Air Act’s 60-day

window for judicial review, 42 U.S.C. § 7607(b)(1), is

not jurisdictional, contrary to the Court of Appeals’

decision. The timeliness issues raised by Corner Post

heighten the rationale for issuing a “GVR” to allow the

Court of Appeals to analyze the Clean Air Act’s 60-day

window, now that this Court has reversed 40 years of

Circuit precedent.1 Because the Clean Air Act confines

judicial review of most major Clean Air Act issues to

the D.C. Circuit, 42 U.S.C. § 7607(b)(1); Adamo

Wrecking Co. v. U.S., 434 U.S. 275, 283-84 (1978), it is

important for the Court of Appeals—and ultimately

this Court—to address justiciability under a statute

that reaches so many areas of the national economy.

Because the issue was not addressed below, a grantvacate-remand (“GVR”) order would be appropriate.

Natural Resources Defense Council v. NRC, 666 F.2d 595,

602 (D.C. Cir. 1981) (Hobbs Act); Grp. Against Smog & Pollution,

Inc. v. U.S. Envtl. Prot. Agency, 665 F.2d 1284, 1290 n.45 (D.C.

Cir. 1981) (Clean Air Act); Edison Electric Institute v. EPA, 996

F.2d 326, 331 (D.C. Cir. 1993) (Resource Conservation and

Recovery Act); Motor & Equipment Manufacturers Association v.

EPA, 142 F.3d 449, 460 (D.C. Cir. 1998) (Clean Air Act); Am. Rd.

& Transp. Builders Ass'n v. EPA, 588 F.3d 1109, 1114 (D.C. Cir.

2009) (Clean Air Act); Nat'l Mining Ass'n v. United States Dep't

of the Interior, 70 F.3d 1345, 1349-50 (D.C. Cir. 1995) (Surface

Mining Control and Reclamation Act).

STATEMENT OF THE CASE

The factual and legal circumstances of Williams’

administrative petition for reconsideration to the

Environmental Protection Agency (“EPA”) and the

Clean Air Act context of that petition are unique and

raise multiple important issues under the Court’s

Corner Post decision.

Factual Background

At best for EPA, this is a case of mistaken

identity.2 Although Williams expressly applied to

enter

EPA’s

new-market

entrant

the

hydrofluorocarbon (“HFC”) allocation program as an

unincorporated individual, EPA interpreted elements

of his application—namely, his email’s internet

domain, a logo, and his trade name “New Era

Group”—to mean that he applied as a defunct Georgia

corporation—New Era Group, Inc.—that EPA viewed

an ineligible for the program. Williams quickly

petitioned EPA administratively through counsel to

correct EPA’s misunderstanding, but EPA has not

acted on that petition (or on follow-up correspondence)

in more than two years, costing Williams hundreds of

thousands of dollars.

Williams has also introduced evidence that the EPA staff

who decided against him and subsequently failed to act on his

administrative petition for reconsideration were biased against

him based on various unlawful criteria including his ethnicity,

his advocating for communities of color in the challenged

program, and his functioning as a whistleblower vis-à-vis EPA’s

implementation of the program at issue here. Garcia v. Veneman,

224 F.R.D. 8, 12 (D.D.C. 2004) (“a pattern of notice and refusal

to correct can serve as proof of the intent element in [a] …

discrimination case”). Williams thus argues in the alternative

that EPA staff intentionally acted unlawfully.

EPA’s denial of Williams’ application meant that

he did not receive HFC allocations in the initial 2022

year. When EPA issued its 2023 allocations without

addressing Williams’ pending administrative petition,

Williams petitioned for review of that allocation as a

constructive denial of his administrative petition. In

seeking review, Williams cites new evidence and new

circumstances, as well as argues that this challenge to

EPA’s initial denial of his initial application was not

ripe when the Clean Air Act’s initial 60-day window to

challenge EPA’s initial denial closed in June of 2022.

Legal Background

The Clean Air Act provides for judicial review

within 60 days of certain EPA action:

Any petition for review under this subsection

shall be filed within sixty days from the date

notice of such promulgation, approval, or

action appears in the Federal Register, except

that if such petition is based solely on grounds

arising after such sixtieth day, then any

petition for review under this subsection shall

be filed within sixty days after such grounds

arise.

42 U.S.C. § 7607(b)(1). This language is a variant of

the review provisions of the Hobbs Act, which provides

for review within a similar 60-day period: “Any party

aggrieved by the final order may, within 60 days after

its entry, file a petition to review the order in the court

of appeals wherein venue lies.” 28 U.S.C. § 2344.

Prior to the Clean Air Act Amendments of 1977

and 1990, the Administrative Procedure Act, 5 U.S.C.

§§ 551-706 (“APA”), governed petitions for review

under the Clean Air Act. Amoco Oil Co. v. EPA, 501

F.2d 722, 731 (D.C. Cir. 1974); Ethyl Corp. v. EPA, 541

F.2d 1, 33-35 (D.C. Cir. 1976); Nat’l Asphalt Pavement

Ass’n v. Train, 539 F.2d 775, 786 (D.C. Cir. 1976). The

two rounds of amendments make Williams’ legal issue

relatively unique under the Clean Air Act, such that

prior Clean Air Act decisions in the D.C. Circuit and

this Court do not address the procedural context at

issue here.

First, the 1977 amendments added a “mini-APA”

to—and thus exempted certain APA provisions from—

§ 307(d) for review of major Clean Air Act actions:

The provisions of section 553 through 557 and

section 706 of title 5 shall not, except as

expressly provided in this subsection, apply to

actions to which this subsection applies.

42 U.S.C. § 7607(d)(1). Because this mini-APA review

applies to most major Clean Air Act programs and

actions, see 42 U.S.C. § 7607(d)(1)(a)-(u) (listing the

EPA actions subject to § 307(d)), there is little if any

directly applicable precedent on how the APA applies

to EPA action outside § 307(d).

Second, the 1990 amendments supplemented the

review provisions to provide that filing a petition for

administrative reconsideration would not extend the

time within which to seek review:

The filing of a petition for reconsideration by

the Administrator of any otherwise final rule

or action shall not affect the finality of such

rule or action for purposes of judicial review

nor extend the time within which a petition

for judicial review of such rule or action under

this section may be filed, and shall not

postpone the effectiveness of such rule or

action.

42 U.S.C. § 7607(b)(1). This amendment abrogated

West Penn Power Co. v. United States Envtl. Prot.

Agency, 860 F.2d 581, 588 (3d Cir. 1988), which held

that the Court of Appeals jurisdictionally could not

review an otherwise final EPA action while a petition

for administrative reconsideration was pending.

Significantly, the APA allows petitioning agencies

to reconsider rules or orders. See 5 U.S.C. §§ 553(e),

555(b). Although those APA provisions do not apply to

major EPA action subject to § 307(d), see 42 U.S.C. §

7607(d)(1), the mini-APA provisions of § 307(d) allow

analogous processes. First, EPA must keep the record

open for 30 days of its action to allow supplementing

the record with materials that were not anticipated to

be necessary to EPA’s proposed action. 42 U.S.C. §

7607(d)(5). Second, for objections that were

impractical to raise during the public-comment

period, EPA must convene a reconsideration process

for issues raised within the window for judicial

review. 42 U.S.C. § 7607(d)(7)(B).

Under the APA provisions that apply outside §

307(d), an interested person seeking reconsideration

of orders under 5 U.S.C. § 555(b) can review an

agency’s denial of an administrative petition for

reconsideration that raises new evidence or new

circumstances that were not available when the

agency first acted. Interstate Commerce Comm’n v.

Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284-85

(1987); cf. Nat’l Labor Relations Bd. Union v. Fed.

Labor Relations Auth., 834 F.2d 191, 195-96 (D.C. Cir.

1987) (similar for rules).

REASONS TO GRANT REHEARING

Corner Post bolsters the rationale for this Court to

grant the writ of certiorari, summary vacate the Court

of Appeals’ decision, and remand for reconsideration

based on both Harrow and Corner Post.

I. CORNER POST CLARIFIED WHEN AN APA

CLAIM ARISES.

Corner Post establishes that APA claims do not

accrue until final agency action. Slip Op. 5-6 (citing 5

U.S.C. §§ 702, 704). That holding is relevant to

Williams’ administrative petition for reconsideration

in two respects. First, unlike most Clean Air Act

litigation, the APA applies to EPA’s response to

Williams’ administrative petition. Compare 5 U.S.C. §

555(b) with 42 U.S.C. § 7607(d)(1). Second, while

having the APA apply to the Clean Air Act is unique,

a further unique aspect of Williams’ case is that the

EPA program at issue operates on an annual basis

(i.e., each new year provides a new final EPA action).

See 42 U.S.C. § 7675(e)(2)(D)(i). As such, EPA’s failure

to grant his still-pending administrative petition for

the new 2023 year at issue here constitutes final

agency action. See Friedman v. FAA, 841 F.3d 537,

541-42 (D.C. Cir. 2016) (“practical effect” of inaction

constitutes a “constructive denial”); Sierra Club v.

Thomas, 828 F.2d 783, 793 (D.C. Cir. 1987) (“agency

inaction may represent effectively final agency action

that the agency has not frankly acknowledged”),

abrogated in part on other grounds, PUB. L. NO. 101549, § 707(f), 104 Stat. 2399, 2683 (1990). Thus,

Williams could—as he did—seek review of EPA’s

constructive denial of his administrative petition

when EPA failed to act on the administrative petition

by the next annual distribution.

II. CORNER POST RAISES QUESTIONS OF

TIMELINESS FOR THE COURT OF

APPEALS TO ANSWER IN THE FIRST

INSTANCE.

In dicta, Corner Post discusses the Hobbs Act’s 60day window as a statute or repose in contrast to the

general statute of limitations in 28 U.S.C. § 2401(a).

See Slip Op. 9-10. The lower courts—or this Court—

will need to address how this dicta should apply not

only to interpreting the Hobbs Act’s 60-day window

but also to interpreting the Clean Air Act’s 60-day

window.

Statutes of repose have an element of “speak now

or forever hold your peace” to them, CTS Corp. v.

Waldburger, 573 U.S. 1, 8 (2014) (“statute of repose …

puts an outer limit on the right to bring a civil

action”); id. at 17 (“‘repose period is fixed and its

expiration will not be delayed by estoppel or tolling’”)

(quoting 4 WRIGHT, FEDERAL PRACTICE & PROCEDURE

§1056, at 240), but the lower courts have held that the

Hobbs Act limitation does not run against agency

actions not ripe for review. Baltimore Gas & Elec. Co.

v. ICC, 672 F.2d 146, 149-50 (D.C. Cir. 1982). The D.C.

Circuit has similarly interpreted the Clean Air Act.

Louisiana Envtl. Action Network v. Browner, 87 F.3d

1379, 1385 (D.C. Cir. 1996). Courts will need to assess

whether Corner Post limits that flexibility by deeming

the Hobbs Act—and thus perhaps also § 307(b)(1) of

the Clean Air Act—a statute of repose for comparison

purposes.

For his part, Williams respectfully submits that

dicta in Corner Post may not limit the administrativelaw aspects of renewed review under the Hobbs Act or

the Clean Air Act: “Statutes of repose effect a

legislative judgment that a defendant should ‘be free

from liability after the legislatively determined period

of time.’” CTS Corp., 573 U.S. at 9 (quoting 54 C.J.S.,

Limitations of Actions §7, at 24) (emphasis added).

Renewed or deferred review under administrative-law

principles differs inherently from delayed liability

under tort, property, or contract law. Unlike liability,

the administrative action measured against the Clean

Air Act’s 60-day window for review “is not instantly

carved in stone” and agencies “must consider varying

interpretations and the wisdom of [their] policy on a

continuing basis.” Chevron, U.S.A., Inc. v. NRDC,

Inc., 467 U.S. 837, 863-64 (1984), overruled in part on

other grounds, Loper Bright Enters. v. Raimondo,

2024 U.S. LEXIS 2882, at *61-62 (June 28, 2024) (Nos.

22-451, 22-1219). The Corner Post discussion of the

Hobbs Act as a statute or repose in dicta that might

not require all claims to end on the sixty-first day.

Even if Corner Post limits the Hobbs Act, the

Clean Air Act may have evolved differently through

Congress. As compared to the Hobbs Act, judicial

review under the Clean Air Act includes both the

above-quoted favorable language for after-arising

grounds and unfavorable language for reconsideration

petitions’ not altering the time for judicial review. See

42 U.S.C. § 7607(b)(1) (quoted supra). In Olijato

Chapter, Navajo Tribe v. Train, 515 F.2d 654 (D.C.

Cir. 1975) (“Navajo Tribe”), the D.C. Circuit addressed

the interplay between § 553(e) and § 307(b)(1). There,

the petitioner sought to challenge an EPA rule outside

§ 307(b)(1)’s window based on new information. The

petitioner had filed suit in district court and, based on

that court’s determining it lacked jurisdiction, also

filed a belated petition for review in the court of

appeals. 515 F.2d at 658-59. Navajo Tribe held that—

to present new information to EPA in a manner that

the court of appeals could review—petitioners first

must petition EPA administratively under § 553(e).

515 F.2d at 666.

In broadening § 307(b)’s scope in the 1977

amendments, Congress ratified the Navajo Tribe

approach. H.R. REP. 94-1175, 264 (1976); S. REP. 95294, 323 (1977). In addition, Congress rejected dicta

from Investment Co. Inst. v. Bd. of Governors, Fed’l

Reserve Sys., 551 F.2d 1270, 1280-81 (D.C. Cir. 1977),

that would allow avoiding § 307(b)’s time bar for “an

undefined legitimate excuse.” S. REP. 95-294, at 322.

By negative implication, Congress did not reject the

Investment Company holding that such petitions are

required for a party to challenge a rule that it lacked

a ripe claim to challenge within the 60-day window.

To the extent that dicta in Corner Post would narrow

flexibility to reopen review under the Hobbs Act, the

Courts of Appeals and ultimately this Court will need

to determine whether that analysis also applies to the

Clean Air Act.

Given this Court’s role as “a court of review, not of

first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n.7

(2005), the flexibility to reopen review or to present

new information via a petition for reconsideration

should be taken up—in the first instance—in the

Court of Appeals. See Lawrence v. Chater, 516 U.S.

163, 167 (1996) (describing the GVR process).

CONCLUSION

The petition for rehearing should be granted and

the case remanded for reconsideration under both

Harrow and Corner Post.

July 17, 2024

Respectfully submitted,