Petition for Writ of Certiorari — Peter Williams, Petitioner v. Environmental Protection Agency, et al.

Supreme Court briefMar 9, 2026

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No. __-_____

In the Supreme Court of the United States

PETER WILLIAMS,

PETITIONER,

ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Ave. NW

Suite 700-1A

Washington, DC 20036

202-899-2987

ljoseph@larryjoseph.com

Counsel for Petitioner

QUESTIONS PRESENTED

Clean Air Act §307(b)(1)’s typical claims-process

rule requires petitioning for review within 60 days of

final action of the Administrator. Since 1990, unique

among such forms of review, administrative petitions

to reconsider do not stay an action’s finality. In 2022,

EPA staff erred factually and legally by denying an

informal Administrative Procedure Act (“APA”) adjudication to enter a new program with annual distributions, which petitioner immediately met with staff to

correct, following up by administratively petitioning

to correct within the 60-day window. When EPA issued the next year’s distribution without deciding the

administrative petition, he sued for constructive denial, which the D.C. Circuit found jurisdictionally

barred by the 60-day window and §304(a)(2), another

1990 Clean Air Act provision, which expanded district

court jurisdiction for failure to take nondiscretionary

action. The present petition for review challenged not

only the 2022 staff action but also EPA’s 2024 denial

of two of four then-pending administrative petitions.

In both petitions for review, the Court of Appeals

granted EPA’s motions to dismiss without the administrative record, over petitioners’ objection. A record

would have shown that subordinate staff without the

Administrator’s delegated authority took the 2022 action and that nothing hinged on the partial 2024 denial in isolation (i.e., EPA could grant the two pending

petitions before the next annual distribution).

The questions presented for summary decision are:

1. Whether this Court’s supervening decision on

nonjurisdictional 60-day windows bars res judicata?

2. Whether review of action unlawfully withheld

remains under §307(b)(1) or moved to §304(a)(2)?

PARTIES TO THE PROCEEDING

Petitioner here and in the court of appeals is Peter

Williams, who used the trade name New Era Group in

his application at issue here.

The respondents here and in the court of appeals

are the federal Environmental Protection Agency and

its Administrator—Lee M. Zeldin—in his official capacity.

RULE 29.6 STATEMENT

Petitioner is a natural persons with no parent

companies and no outstanding stock.

STATEMENT OF RELATED CASES

For purposes of this Court’s Rule 14.1(b)(iii), this

case arises from and is related to the following proceedings in the U.S. Court of Appeals for the District

of Columbia Circuit and this Court:

• Williams v. Envtl. Prot. Agency, No. 22-1314 (D.C.

Cir.). Dismissed July 7, 2023.

• In re Williams, No. 23-1269 (D.C. Cir.). Dismissed

December 21, 2023.

• Williams v. Envtl. Prot. Agency, No. 23-1340 (D.C.

Cir.). Dismissed April 2, 2025.

• Williams v. Envtl. Prot. Agency, No. 24-1386 (D.C.

Cir.). Dismissed June 25, 2025 (i.e., this case).

• Williams v. Envtl. Prot. Agency, No. 26-1021 (D.C.

Cir.). Docketed December 21, 2023; pending.

• Williams v. Newberg, No. 1:24-cv-3471-RBW

(D.D.C.). Filed December 12, 2024; pending.

• In re Williams, No. 25A757 (U.S.). Application

granted January 5, 2026.

iii

TABLE OF CONTENTS

Questions Presented ................................................... i

Parties to the Proceeding ........................................... ii

Rule 29.6 Statement ................................................... ii

Statement of Related Cases ....................................... ii

Appendix .................................................................... iv

Table of Authorities.................................................. vii

Petition for Writ of Certiorari .................................... 1

Opinions Below ........................................................... 2

Jurisdiction ................................................................. 2

Constitutional and Statutory Provisions Involved ... 2

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

Reasons to Grant the Writ ......................................... 8

I. The Court of Appeals lacked a valid basis to

find a challenge to EPA staff’s 2022 actions

untimely. ............................................................ 10

A. The Clean Air Act’s 60-window is a nonjurisdictional claims-processing rule. ......... 10

B. Williams I cannot control on timeliness. .... 10

C. Neither this Court nor the Court of

Appeals should hold petitioner’s action

untimely without the record. ...................... 13

II. The 1990 amendments to §304 did not

remove the Courts of Appeals’ §307

jurisdiction over APA unlawfully-withheld

claims.................................................................. 15

A. Repeals by implications are disfavored,

especially when they repeal causes of

action as especially, especially for APA

claims. .......................................................... 16

1. This Court’s Bennett holding could

guide this Court to find APA merits

review under §307(b)(1). ....................... 17

2. Then-Judge Kavanaugh’s Mexichem

dissent could guide this Court to find

APA merits review under §307(b)(1)

for actions outside §307(d). ................... 17

B. The motions panel abused its discretion

by not deciding the jurisdictional issue. ..... 18

C. The 1990 expansion of citizen suits for

unreasonable-delay claims did not

displace merits review under §307(b)(1). ... 19

1. District courts likely lack authority

or jurisdiction to issue merits relief. .... 20

2. While likely wrong and unintended,

Williams II held that §304 empowers

district courts to issue merits relief. .... 22

D. Summary reversal and remand to

consider the jurisdictional question is

appropriate. ................................................. 23

III. The issues here are important, recurring,

and squarely set for summary decision. ........... 25

Conclusion ................................................................ 26

APPENDIX

Williams v. EPA, No. 24-1386 (D.C. Cir. June

25, 2025) ............................................................. 1a

Letter from Cynthia A. Newburg, Director,

Stratospheric Protection Division, Environmental Protection Agency, to Peter Williams (Mar. 31, 2022) ......................................... 3a

Memorandum to File, Cynthia A. Newburg, Director, Stratospheric Protection Division,

Environmental Protection Agency (Mar. 31,

2022) ................................................................... 6a

Phasedown of Hydrofluorocarbons: Notice of

2022 Set-Aside Pool Allowance Allocations

for Production and Consumption of Regulated Substances under the American Innovation and Manufacturing Act of 2020, 87

Fed. Reg. 19,683 (Apr. 5, 2022) (excerpt) ........ 12a

Letter from Joseph M. Goffman, Assistant Administrator, Air & Radiation, Environmental Protection Agency, to J. Gordon Arbuckle & Lawrence J. Joseph (Nov. 8, 2024) .. 14a

Williams v. EPA, Nos. 23-1340, 24-1386 (D.C.

Cir. Feb. 10, 2025) ............................................ 17a

Williams v. EPA, Nos. 23-1340, 24-1386 (D.C.

Cir. Apr. 2, 2025).............................................. 18a

Williams v. EPA, No. 24-1386 (D.C. Cir. Oct. 10,

2025) (en banc) ................................................. 22a

Williams v. EEPA, No. 24-1386 (D.C. Cir.

Oct.10, 2025) (panel) ........................................ 23a

5 U.S.C. §551(13) .................................................... 24a

5 U.S.C. §553(e) ...................................................... 24a

5 U.S.C. §555(b), (e)................................................ 24a

5 U.S.C. §559 .......................................................... 25a

5 U.S.C. §702 .......................................................... 25a

5 U.S.C. §703 .......................................................... 26a

5 U.S.C. §704 .......................................................... 27a

5 U.S.C. §706 .......................................................... 27a

28 U.S.C. §1631 ...................................................... 28a

42 U.S.C. §7604(a) .................................................. 28a

42 U.S.C. §7607(b) .................................................. 30a

42 U.S.C. §7607(d) .................................................. 32a

42 U.S.C. §7675(e)(2)(D) ........................................ 39a

42 U.S.C. §7675(k)(1) ............................................. 40a

40 C.F.R. §84.3 (excerpt) ........................................ 40a

40 C.F.R. §84.15(c) ................................................. 41a

Williams New-Entrant Application (excerpt) ....... 42a

vii

TABLE OF AUTHORITIES

Cases

Adamo Wrecking Co. v. United States,

434 U.S. 275 (1978) ......................................... 9, 26

Allen v. McCurry,

449 U.S. 90 (1980) .......................................... 11-12

Alon Refining Krotz Springs, Inc. v. EPA,

936 F.3d 628 (D.C. Cir. 2019) ............................... 4

Am. Bioscience, Inc. v. Thompson,

243 F.3d 579 (D.C. Cir. 2001) ............................. 14

Am. Dairy of Evansville, Inc. v. Bergland,

627 F.2d 1252 (D.C. Cir. 1980) ........................... 16

Amoco Oil Co. v. EPA,

501 F.2d 722 (D.C. Cir. 1974) ............................. 15

Arizona v. Inter Tribal Council of Arizona, Inc.,

570 U.S. 1 (2013) ............................................ 15-16

BellSouth Corp. v. FCC,

162 F.3d 678 (D.C. Cir. 1998) ............................... 6

Bennett v. Spear,

520 U.S. 154 (1997) ................................. 13, 17, 19

Bobby v. Bies,

556 U.S. 825 (2009) ....................................... 12, 24

Brownback v. King,

592 U.S. 209 (2021) ............................................. 11

Business Roundtable v. SEC,

905 F.2d 406 (D.C. Cir. 1990) ............................... 6

Chevron U.S.A. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ...................... 23

Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ............................................. 14

Colorado River Water Conserv. Dist. v. United

States, 424 U.S. 800 (1976) ................................. 18

viii

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990) ............................................. 18

Cort v. Ash,

422 U.S. 66 (1975) ................................................. 6

Cutter v. Wilkinson,

544 U.S. 709 (2005) ............................................. 23

Danziger & De Llano, LLP v. Morgan Verkamp

LLC, 948 F.3d 124 (3d Cir. 2020) ....................... 18

Deckert v. Independence Shares Corporation,

311 U.S. 282 (1940) ............................................... 4

Dickinson v. Zurko,

527 U.S. 150 (1999) ............................................. 16

Doe v. McMaster,

355 S.C. 306 (2003) ............................................... 6

Dozier v. Ford Motor Co.,

702 F.2d 1189 (D.C. Cir. 1983) ........................... 13

El Rio Santa Cruz Neighborhood Health Ctr. v.

United States HHS, 396 F.3d 1265 (D.C. Cir.

2005) .................................................................... 21

Env’t Def. Fund v. Thomas,

870 F.2d 892 (2d Cir. 1989) ................................ 20

Ethyl Corp. v. EPA,

541 F.2d 1 (D.C. Cir. 1976) ................................. 15

FCC v. ITT World Commc'ns, Inc.,

466 U.S. 463 (1984) ............................................. 15

FEC v. NRA Political Victory Fund,

513 U.S. 88 (1994) ............................................... 13

Friedman v. FAA,

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

GAF Corp. v. United States,

818 F.2d 901 (D.C. Cir. 1987) ............................. 13

Goldlawr, Inc. v. Heiman,

369 U.S. 463 (1962) ....................................... 18, 24

Greater Boston Television Corp. v. FCC,

463 F.2d 268 (D.C. Cir. 1971) ............................. 22

Growth Energy v. EPA,

5 F.4th 1 (D.C. Cir. 2021) ................................... 10

Harrison v. PPG Indus.,

446 U.S. 578 (1980) ............................................. 10

Harrow v. Dep’t of Def.,

601 U.S. 480 (2024) .................................... 9-12, 24

Harvey v. District of Columbia,

798 F.3d 1042 (D.C. Cir. 2015) ........................... 23

Home Box Office, Inc. v. FCC,

567 F.2d 9 (D.C. Cir. 1977) ................................. 22

In re Estate of Reilly,

933 A.2d 830 (D.C. 2007) ................................... 3-4

In re Williams,

No. 23-1269 (D.C. Cir.) ........................ 3, 19, 22-24

In re Williams,

No. 25A757 (U.S. 2026)......................................... 2

Indiana & Michigan Electric Co. v US. EPA,

733 F. 2d 489 (7th Cir. 1984) .............................. 20

Indus. Union Dep’t v. Bingham,

570 F.2d 965 (D.C. Cir. 1977) ............................. 12

Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987) ........................... 8

Jefferson v. Upton,

560 U.S. 284 (2010) ............................................. 24

John Doe, Inc. v. DEA,

484 F.3d 561 (D.C. Cir. 2007) ........................ 13-14

Lawrence v. Chater,

516 U.S. 163 (1996) ............................................. 24

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ............................................. 23

Louisiana Envtl. Action Network v. Browner,

87 F.3d 1379 (D.C. Cir. 1996) ............................. 14

Mexichem Specialty Resins, Inc. v. EPA,

787 F.3d 544 (D.C. Cir. 2015) .................. 17, 20-22

Microwave Communications, Inc. v. FCC,

515 F.2d 385 (D.C. Cir. 1974) ............................. 12

Miller v. Harco Nat’l Ins. Co.,

274 Ga. 387 (2001) ................................................ 6

Montana v. United States,

440 U.S. 147 (1979) ....................................... 12, 24

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

539 F.2d 775 (D.C. Cir. 1976) ............................. 15

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) ...................................... 16

Nat'l Ass'n of Home Builders v. EPA,

786 F.3d 34 (D.C. Cir. 2015) ............................... 13

Nelson v. Adams USA, Inc.,

529 U.S. 460 (2000) ............................................... 6

NRDC v. Wheeler,

955 F.3d 68 (D.C. Cir. 2020) ............................... 13

Paul v. INS,

348 F.3d 43 (2d Cir. 2003) .................................. 18

Payne Enters., Inc. v. United States,

837 F.2d 486 (D.C. Cir. 1988) ............................. 16

Pfizer Inc. v. Shalala,

182 F.3d 975 (D.C. Cir. 1999) ............................. 14

POET Biorefining, LLC v. EPA,

970 F.3d 392 (D.C. Cir. 2020) ............................. 13

Pritchett v. Stillwell,

604 A.2d 886 (D.C. 1992) ...................................... 5

RMS of Ga., LLC v. United States EPA,

64 F.4th 1368 (11th Cir. 2023) ........................... 21

Rodway v. Dep’t of Agriculture,

514 F.2d 809 (D.C. Cir. 1975) ............................. 14

Schlesinger v. Councilman,

420 U.S. 738 (1975) ............................................. 16

Sendra Corp. v. Magaw,

111 F.3d 162 (D.C. Cir. 1997) ............................... 8

Sierra Club v. Browner,

130 F.Supp.2d 78 (D.D.C. 2001) ......................... 20

Sierra Club v. Thomas,

828 F.2d 783 (D.C. Cir. 1987) ....................... 15, 20

Telecomms. Research & Action Ctr. v. FCC,

750 F.2d 70 (D.C. Cir. 1984) ............................... 15

Tolan v. Cotton,

572 U.S. 650 (2014) ............................................. 25

Tr. Co. of Ga. v. State,

109 Ga. 736, 755 (1900) ........................................ 6

United States v. Beebe,

180 U.S. 343 (1901) ............................................. 11

United States v. Western Elec. Co.,

12 F.3d 225 (D.C. Cir. 1993) ................................. 7

Walter O. Boswell Memorial Hosp. v. Heckler,

749 F.2d 788 (D.C. Cir. 1984) ............................. 14

Washington Ass’n for Television & Children v.

FCC, 712 F.2d 677 (D.C. Cir. 1983) ................... 22

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ............................................. 12

Whitney Nat'l Bank v. Bank of New Orleans & Tr.

Co., 379 U.S. 411 (1965)...................................... 15

Whole Woman's Health v. Hellerstedt,

579 U.S. 582 (2016) ............................................. 11

xii

Wilkes-Barre Hosp. Co., LLC v. NLRB,

857 F.3d 364 (D.C. Cir. 2017) ............................. 11

Williams v. EPA,

No. 22-1314 (D.C. Cir.) ................................... 3, 10

Williams v. EPA,

No. 23-1340 (D.C. Cir.) ......................................... 3

Williams v. EPA,

No. 24-1386 (D.C. Cir.) ................................ 3-4, 11

Williams v. EPA,

No. 26-1021 (D.C. Cir.) ................................... 4, 24

Women’s Equity Action League v. Cavazos,

906 F.2d 742 (D.C. Cir. 1990) ............................. 21

Yellow Pages Photos, Inc. v. YP, LLC,

856 F.App’x 846 (11th Cir. 2021)......................... 7

York Grp., Inc. v. Wuxi Taihu Tractor Co., 632

F.3d 399 (7th Cir. 2011) ........................................ 5

Statutes

28 U.S.C. §1254(1) ...................................................... 2

28 U.S.C. §1406(a) .................................................... 18

28 U.S.C. §1631 .............................................. 1, 18, 24

28 U.S.C. §1651(a) .................................................... 15

28 U.S.C. §2112(b) .................................................... 26

Administrative Procedure Act

5 U.S.C. §§551-706 ........ 3-5, 9, 14-19, 21-22, 24-25

5 U.S.C. §559 ............................................................ 16

5 U.S.C. §553(e) ........................................................ 16

5 U.S.C. §555(b) ........................................................ 16

5 U.S.C. §555(e) .................................................... 7, 12

5 U.S.C. §704 ........................................................ 3, 12

5 U.S.C. §705 ........................................................ 3, 17

5 U.S.C. §706 .................................................. 3, 14, 26

xiii

5 U.S.C. §706(1) ......................................... 3, 15-16, 21

Clean Air Act,

42 U.S.C. §§7401-7675 ....... 1, 5, 8-13, 15-17, 25-26

42 U.S.C. §7604(a) .............................................. 17, 22

42 U.S.C. §7604(a)(2) .................................... 19-20, 26

42 U.S.C. §7607(b)(1) ..... 1-2, 4, 9-13, 17, 19-21, 25-26

42 U.S.C. §7607(d) ..................................... 9, 17-19, 25

42 U.S.C. §7607(d)(1) ...................................... 9, 17-18

42 U.S.C. §7607(d)(1)(a)-(u) ....................................... 9

42 U.S.C. §7607(d)(5)(iv) .......................................... 18

42 U.S.C. §7607(d)(7)(B) .......................................... 18

Paperwork Reduction Act,

44 U.S.C. §§3501-3521 .......................................... 7

44 U.S.C. §3506(c)(3)(D) ............................................. 7

Clean Air Act Amendments of 1990, PUB. L. NO.

101-549, §707(f), 104 Stat. 2399, 2683 (1990) .... 15

O.C.G.A. §14-2-1110(1) .............................................. 7

Legislative History

S. REP. NO. 101-228 (1989) .................................. 20-21

Rules, Regulations and Orders

FED. R. APP. P. 17(b)(3) ............................................. 26

40 C.F.R. §84.11(b)(1) ............................................... 16

40 C.F.R. §84.15(c)(2) ................................................. 7

40 C.F.R. §84.15(e)(3) ............................................... 16

Other Authorities

17 MOORE'S FEDERAL PRACTICE - CIVIL §111.63 ...... 18

BLACK'S LAW DICTIONARY (11th ed. 2019) .............. 6-7

BLACK'S LAW DICTIONARY (12th ed. 2024) ................. 7

Office of Air Quality Planning and Standards,

EPA Process Manual for Responding to

xiv

Requests Concerning Applicability and Compliance Requirements of Certain Clean Air Act

Stationary Source Programs (July 2020) ........... 12

Second Am. Compl. (ECF #52-1), Williams v.

Newberg, No. 1:24-cv-3471-RBW (D.D.C.) ........... 5

“He went that way,” or “go sue in that court.”

PETITION FOR WRIT OF CERTIORARI

Peter Williams respectfully petitions this Court

for a writ of certiorari to the U.S. Court of Appeals for

the District of Columbia Circuit to review dismissal of

his Clean Air Act petition for review under 42 U.S.C.

§7607(b)(1) and—to the extent that statutory subjectmatter jurisdiction under that section was lacking—

the court’s failure to consider transfer to the district

court under 28 U.S.C. §1631. This petition for review

is the fourth appellate effort to compel respondent

Environmental Protection Agency and its Administrator (“EPA”) to correct an obvious error by EPA

staff in 2022 on Williams’ application as a new-market

entrant in an EPA cap-and-trade program. In the D.C.

Circuit, EPA argued that he must sue in district court.

In district court, EPA argues that he must sue under

a petition for review. This ping pong must stop.

OPINIONS BELOW

The District of Columbia Circuit’s unreported

order is reprinted in the Appendix (“App”) at 1a.

JURISDICTION

On June 25, 2025, the District of Columbia Circuit

issued its Order dismissing the petition for review. By

orders dated October 10, 2025, App:22a, 23a, the

panel and en banc court denied petitioners’ timely

petition for rehearing. By order dated January 5,

2026, the Circuit Justice extended the time within

which to petition for a writ of certiorari to March 9,

2026. In re Williams, No. 25A757 (U.S. 2026). The

Court of Appeals had jurisdiction under 42 U.S.C.

§7607(b)(1). This Court has jurisdiction under 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Appendix sets out the relevant constitutional,

statutory, and regulatory provisions. App:24a-41a.

STATEMENT OF THE CASE

At best for EPA, this is a case of mistaken identity

in which Williams applied as an individual, but EPA

interpreted his application to be on behalf of a defunct

corporation. Through counsel, Williams quickly

petitioned EPA administratively to reconsider EPA’s

error, but EPA has evaded answering administrative

petitions forthrightly and—in appellate review and in

the district court—EPA has steadfastly avoided filing

the administrative record and sought dismissal based

on untimeliness under the 60-day window for review

under 42 U.S.C. §7607(b)(1), If filed, the record would

show that the EPA staffers who initially acted to deny

his application lacked the Administrator’s delegated

authority to act in 2022 and that no subsequent action

constituted final action of the Administrator on his

underlying application.1

This action (“Williams IV”) challenges the 2024

denial by EPA’s Assistant Administrator for Air and

Radiation in the “Goffman Letter,” App:14a, of two of

four then-pending administrative petitions. Williams

seeks to challenge the 2022 action by EPA staff as the

type of “preliminary, procedural, or intermediate

agency action[s] or ruling[s]” that the APA reviews as

part of “the review of the final agency action.” 5 U.S.C.

§704. The Court of Appeals dismissed all but Wiliams’

challenge to the Assistant Administrator’s Goffman

Letter.2

EPA staff took three discrete actions related to Williams’

application in 2022: (a) a letter from Cynthia Newberg denying

the application, App:3a ( “Newberg Letter”), (b) a memorandum

to file by Newberg, App:6a (“Newberg Memorandum”), and (c) a

Federal Register noticed signed by another EPA staffer, Hans

Christopher Grundler, App:12a.

The five appellate matters were not carbon copies. Williams

v. EPA, No. 22-1314 (D.C. Cir.) (“Williams I”), petitioned to

review the 2023 HFC allocation as constructively denying his

administrative petition for reconsideration dated April 20, 2022.

See Friedman v. FAA, 841 F.3d 537, 541-42 (D.C. Cir. 2016)

(“practical effect” of inaction constitutes a “constructive denial”).

In re Williams, No. 23-1269 (D.C. Cir.) (“Williams II”), petitioned

for a writ of mandamus to compel EPA to grant his new-marketentrant application under 5 U.S.C. §706(1) (addressing both

action “unlawfully withheld” and action “unreasonably delayed”)

because the “unlawfully withheld” clause is synonymous with

mandamus. Williams v. EPA, No. 23-1340 (D.C. Cir.) (“Williams

III”), petitioned under 5 U.S.C. §705 (i.e., not §706) when EPA’s

Federal Register notice for the 2024 allocations also announced

administrative-consequence policies that—apart from the 2024

allocation—threatened to deplete a common fund that EPA could

use to make Williams whole without encroaching on the other

participants core HFC allocations. See In re Estate of Reilly, 933

Although the Assistant Administrator’s had

authority to act for EPA, his action was neither “final”

under the Administrative Procedure Act, 5 U.S.C.

§§551-706 (“APA”), nor ripe because EPA already had

issued the 2025 distributions and could have granted

his still-pending application and still pending

administrative petitions before EPA issues the 2026

allocations in November of 2025 (i.e., nothing hinged

on the 2024 denial of two of the four then-pending

petitions). EPA now has issued the 2026 allocations

without either granting or denying the still-ending

administrative petitions or Williams’ underlying

application, and he has protectively petitioned the

D.C. Circuit for review for constructive denial of his

application, seeking—in the alternative—transfer to

the district court. See Williams v. EPA, No. 26-1021

(D.C. Cir.) (“Williams V”). EPA has once again moved

to withhold the record and to dismiss for lack of

jurisdiction. Williams seeks summary reversal here so

that this challenge can join Williams V in the Court of

A.2d 830, 834 (D.C. 2007) (affirming preliminary injunction

against further dissipation of trust funds); Deckert v.

Independence Shares Corporation, 311 U.S. 282, 290 (1940)

(same). Williams v. EPA, No. 24-1386 (D.C. Cir.) (“Williams IV”),

petitioned to review not only the Goffman Letter’s belated,

partial response to the then-pending administrative petitions for

reconsideration but also the Goffman Letter’s ripening of

Williams’ challenge to EPA staff’s underlying denial of his

application. See Alon Refining Krotz Springs, Inc. v. EPA, 936

F.3d 628, 646 (D.C. Cir. 2019) (distinguishing between review for

failing to revise and for after-arising ripening). Williams v. EPA,

No. 26-1021 (D.C. Cir.) (“Wiliams V”), protectively petitioned for

review of the 2026 allocation as constructive denial of Williams’

application based on the lack—to date—of a final action of the

Administrator on his application, while alternatively seeking

transfer if there was no final action on his application for subjectmatter jurisdiction under 42 U.S.C. §7607(b)(1).

Appeals, while removing any issues of res judicata

and giving the Court of Appeals guidance on the

jurisdictional issues to consider.

Because Williams seeks summary reversal on the

basis of purely legal issues (i.e., whether the Clean Air

Act’s 60-day window for review is jurisdictional,

whether a court should dismiss APA claims without

an administrative record, whether the Clean Air Act’s

1990 citizen-suit amendments displaced appellate

APA merits review), the facts are not particularly

relevant.3 Williams recounts them here only as they

relate to the issues presented here.

EPA staff’s processing of Williams’ application

involved four entities: (A) the applicant, Peter

Williams, a natural person; (B) his trade name, “New

Era Group;” (C) a Georgia corporation named “New

ERA Group, Inc.;” and (D) RMS of Georgia, LLC (an

existing market participant with Kenneth Ponder as

its President and owner). There are three ways to

analyze the four entities’ relevance to Plaintiff’s

application:

• Plaintiff’s Interpretation: A and B are legal

synonyms: “the identity of [a sole proprietorship]

was the same as that of its owner.” Pritchett v.

Stillwell, 604 A.2d 886, 889 (D.C. 1992); York

Grp., Inc. v. Wuxi Taihu Tractor Co., 632 F.3d 399,

403 (7th Cir. 2011) (person and his trade name

“are two names for the same person. Either will

do; both are better”). Thus, the applicant was A:B,

with both C and D as irrelevant third parties.

A verified Second Amended Complaint that Williams seeks

leave to file in district court sets out the facts in detail. Second

Am. Compl. (ECF #52-1), Williams v. Newberg, No. 1:24-cv-3471RBW (D.D.C.).

•

Newberg Letter: As noticed to Williams on April

1, 2022, the Newberg Letter appears to treat B

and C as synonymous, so the applicant was A dba

B:C, where C and D are affiliated because they

share a common officer. This analysis is clearly

erroneous: “An individual doing business under a

trade name is clearly a sole proprietor distinct

under Georgia law from a corporation in which

that individual holds stock.” Miller v. Harco Nat’l

Ins. Co., 274 Ga. 387, 390 (2001); BellSouth Corp.

v. FCC, 162 F.3d 678, 684 (D.C. Cir. 1998) (“it is

obvious that there are differences between a

corporation and an individual under the law”); cf.

Nelson v. Adams USA, Inc., 529 U.S. 460, 471

(2000) (distinguishing corporation from its officer

and sole shareholder). Moreover, “[c]orporations

are creatures of state law,” Cort v. Ash, 422 U.S.

66, 84 (1975); Business Roundtable v. SEC, 905

F.2d 406, 412 (D.C. Cir. 1990); Doe v. McMaster,

355 S.C. 306, 313 (2003); Tr. Co. of Ga. v. State,

109 Ga. 736, 755 (1900), and no relevant law

equates individuals with similarly named

corporations.

Newberg Memorandum: As belatedly noticed to

Williams on May 12, 2025, the Newberg

Memorandum finds affiliation based on the

purported fact that A and an officer of D served

together on the board of C—wholly apart not only

from the similarity of B’s and C’s names but also

from whether A’s application mentioned B—so A

is affiliated with D. This analysis is clearly

erroneous because a corporate “affiliate” means

“[a] corporation that is related to another

corporation by shareholdings or other means of

control; a subsidiary, parent, or sibling

corporation.” BLACK'S LAW DICTIONARY 72 (11th

ed. 2019) (emphasis added); BLACK'S LAW

DICTIONARY 72 (12th ed. 2024) (same); Yellow

Pages Photos, Inc. v. YP, LLC, 856 F.App’x 846,

856 n.3 (11th Cir. 2021) (same), which reflects

“the usual corporate understanding of affiliation

as a relationship involving ownership or control”

that applies in the absence of a contrary

definition. United States v. Western Elec. Co., 12

F.3d 225, 230 (D.C. Cir. 1993); O.C.G.A. §14-21110(1) (“affiliate” means “a person that directly,

or indirectly through one or more intermediaries,

controls or is controlled by or is under common

control with a specified person”).

These distinctions are relevant here for two reasons.

First, the fact that EPA did not disclose the Newberg

Memorandum in the 2022 Federal Register notice or

provide it to Williams until 2025 violated 5 U.S.C.

§555(e) (requiring prompt notice of basis for denial),

which could be relevant to the timeliness (i.e., when

the 60-day window began to run). See Section I.B,

infra. Second, the absurdity of EPA’s interpretation of

the unmodified phrase “corporate affiliation” means,

see 40 C.F.R. §84.15(c)(2), could convince the Court of

the equites of the parties’ respective positions if the

Court considers such issues in determining whether

to grant review.4

Upon receiving the Newberg Letter on April 1,

2022, Williams contacted EPA staff to correct the

The Paperwork Reduction Act, 44 U.S.C. §§3501-3521,

requires agencies to certify, inter alia, that information collection

activities like EPA’s application form are “written using plain,

coherent,

and

unambiguous

terminology

and

[are]

understandable to those who are to respond.” 44 U.S.C.

§3506(c)(3)(D).

conflation of his trade name (“New Era Group”) with

a similarly named corporation (“New ERA Group,

Inc.”). Through counsel, on April 20, 2022, Williams

petitioned EPA administratively to correct EPA’s

error, but EPA has never acted on his petition.

Williams supplemented his administrative petition

through counsel by letter dated December 12, 2022,

and RMS—the company with which EPA believed

Williams or New ERA Group, Inc. had corporate

relations—administratively petitioned EPA to correct

its error by letter dated December 29, 2022. EPA did

not act on the pending administrative petition in time

to include Williams in the 2023 allocation. On April

30, 2024, Williams notified EPA of his intent to sue to

bring a citizen suit to compel a response to not only

his two administrative petitions but also to the RMS

administrative petition and again petitioned EPA to

grant his underlying application. Significantly, both

the RMS petition and Wiliams’ petition dated April

30, 2024, included new evidence for reversing EPA’s

denial within the meaning of Interstate Commerce

Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,

284-85 (1987) (“BLE”). In denying the petitions dated

April 20, 2022, and December 12, 2022, the Goffman

Letter cited the lack of new evidence under Sendra

Corp. v. Magaw, 111 F.3d 162, 166 (D.C. Cir. 1997),

App:16a, while ignoring two administrative petitions

that contained new evidence.

REASONS TO GRANT THE WRIT

The Clean Air Act’s control over so many facets of

the national economy and even daily life make it

critical that federal courts provide the judicial review

that

Congress

intended,

consistent

with

constitutional and prudential guidelines. Given that

so much of the litigation in the Act funnels through

the District of Columbia Circuit as “nationally

applicable,” see 42 U.S.C. §7607(b)(1); Adamo

Wrecking Co. v. United States, 434 U.S. 275, 283-84

(1978) (centrality of D.C. Circuit to Clean Air Act

review), this Court should not wait for circuit splits to

arise when the District of Columbia Circuit errs. The

Court should grant the writ to address several aspects

of judicial review under the Clean Air Act.

1. This Court should clarify that the 60-day

window for review is non-jurisdictional under Harrow

v. Dep’t of Def., 601 U.S. 480, 484 (2024).

2. The court of appeals applied cases under the

Clean Air Act generally, without distinguishing the

bulk of major EPA actions that fall under the Act’s

abbreviated review procedures under §307(d), see 42

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

subject to §307(d)) vis-à-vis EPA actions like this

matter that remain subject to pure APA review.

3. That “APA versus §307(d)” distinction bears

on the timing, adequacy, and exclusivity of judicial

review of EPA action, especially in informal

adjudications that involve administrative petitions for

reconsideration.

4. Whether via summary reversal and remand or

full merits briefing, this Court should clarify that the

1990 Clean Air Act’s expansion of citizen-suit review

of EPA inaction did not displace APA merits review on

petitions for review.

5. This Court should reiterate that APA review

requires an administrative record.

These important reasons justify this Court’s resolving

these crucial issues expeditiously.

I. THE COURT OF APPEALS LACKED A

VALID BASIS TO FIND A CHALLENGE TO

EPA STAFF’S 2022 ACTIONS UNTIMELY.

The motions panel dismissed Williams’ challenge

to EPA staff’s 2022 actions as untimely, App:19a,

refused to reinstate it, App:1a-2a, and held that the

record Williams sought would not bear on the court’s

ruling. App:22a. Without the record, however, the

motions panel had no basis to find untimeliness under

blackletter administrative law.

A. The Clean Air Act’s 60-window is a nonjurisdictional claims-processing rule.

Prior to the U.S. Supreme Court’s decision in

Harrow 601 U.S. at 484, precedent in this Circuit

deemed provisions like the Clean Air Act’s 60-day

window for judicial review as jurisdictional. See, e.g.,

.Growth Energy v. EPA, 5 F.4th 1, 12-13 (D.C. Cir.

2021); App:19a (citing Growth Energy 5 F.4th at 1213). Under Harrow, courts “treat a procedural

requirement as jurisdictional only if Congress clearly

states that it is, Harrow, 601 U.S. at 484, and nothing

in 42 U.S.C. §7607(b)(1) makes the 60-day window

jurisdictional. The only requirement for subjectmatter jurisdiction in 42 U.S.C. §7607(b)(1) is final

action of the Administrator. See 42 U.S.C. §7607(b)(1);

Harrison v. PPG Indus., 446 U.S. 578, 605 & n.7

(1980) (Stevens, dissenting) (timeliness not an issue

where EPA had not yet published action in the

Federal Register). In sum, §307(b)(1)’s 60-day window

is non-jurisdictional.

B. Williams I cannot control on timeliness.

Williams I cannot control on the timeliness of

Williams’ challenge to EPA staff’s 2022 actions on his

application for at least five reasons:

•

Harrow changed the legal context.

EPA did not disclose its full basis the 2022 action

on the underlying application until after Williams

filed Williams IV.

• EPA staff who acted in 2022 on the application

lacked the Administrator’s delegated authority.

• If authorized EPA officials ratified EPA staff’s

2022 action, the 60-day window begins to run

when EPA notices the ratification in the Federal

• Any issue preclusion on timeliness is curable by

alleging that EPA staff lacked authority to take

final action for EPA in 2022.

Williams says at least five reasons because tolling the

60-day window and barring use of res judicata would

be available on equitable grounds, beyond the reasons

listed above.

Res judicata is an equitable doctrine that

encompasses two distinct doctrines: (a) claim

preclusion, and (b) issue preclusion or collateral

estoppel. Brownback v. King, 592 U.S. 209, 215 n.3

(2021). Claim preclusion requires a merits judgement,

Whole Woman's Health v. Hellerstedt, 579 U.S. 582,

646 (2016), which Williams I was not. Collateral

estoppel—or issue preclusion—can arise “once a court

has decided an issue of fact or law necessary to its

judgment” and “may preclude relitigation of the issue

in a suit on a different cause of action involving a

Ratification requires dealing with “full knowledge” of the

issues underlying the ratified act and a “independent evaluation

of the merits.” Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d

364, 371 (D.C. Cir. 2017) (ratification requires “independent

evaluation of the merits”); United States v. Beebe, 180 U.S. 343,

354 (1901) (ratification requires “full knowledge of all the facts”).

party to the first case.” Allen v. McCurry, 449 U.S. 90,

94 (1980) (emphasis added). But even where collateral

estoppel otherwise might apply, an exception applies

for an intervening “change in [the] applicable legal

context.” Bobby v. Bies, 556 U.S. 825, 834 (2009)

(cleaned up); Montana v. United States, 440 U.S. 147,

157-58 (1979) (prior judgment was conclusive

“[a]bsent significant changes in controlling facts or

legal principles” since the judgment). Harrow changed

otherwise-controlling Circuit precedent on timeliness

of challenges to past action.

Second, EPA did not release the basis for EPA

staff’s March 2022 denial until August 12, 2025, when

EPA disclosed the Goffman Letter’s administrative

record. The belated disclosure violated the duty under

5 U.S.C. 555(e) to disclose the basis for the denial. A

60-day window to petition for review begins to run

only when the agency publishes its full action. Indus.

Union Dep’t v. Bingham, 570 F.2d 965, 969 (D.C. Cir.

1977) (citing Microwave Communications, Inc. v.

FCC, 515 F.2d 385 (D.C. Cir. 1974)) (“the period for

seeking review of an [agency] order began only when

its full text was made available”); Office of Air Quality

Planning and Standards, EPA Process Manual for

Responding to Requests Concerning Applicability and

Compliance Requirements of Certain Clean Air Act

Stationary Source Programs, at 47 (July 2020).

Third, the “phrase ‘final action’ … bears the same

meaning in [42 U.S.C. §7607(b)(1)] that it does

under… 5 U.S.C. §704,” Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 478 (2001), and “preliminary…

or intermediate agency action[s] or ruling[s]” are

reviewable only after an agency takes final agency

action. 5 U.S.C. §704. Neither agency action taken by

merely subordinate officials nor “tentative” agency

action is “final” agency action. NRDC v. Wheeler, 955

F.3d 68, 78 (D.C. Cir. 2020); Bennett v. Spear, 520 U.S.

154, 177-78 (1997). EPA staff’s 2022 actions were not

final action of the Administrator needed for the Court

of Appeals to have had subject-matter jurisdiction in

2022 under 42 U.S.C. §7607(b)(1).

Fourth, the effective date of ratified agency action

is the date of ratification, not the date of the original

act. FEC v. NRA Political Victory Fund, 513 U.S. 88,

98-99 (1994). Further, the 60-day window for review

begins when EPA notices it in the Federal Register, 42

U.S.C. §7607(b)(1), which has not happened yet, even

if EPA has ratified EPA staff’s 2022 action.

Fifth, jurisdictional issue preclusion is curable by

citing in a new action based on new agency action the

defect in the prior subject to a curable-defect

exception, Nat'l Ass'n of Home Builders v. EPA, 786

F.3d 34, 41-42 (D.C. Cir. 2015) (citing GAF Corp. v.

United States, 818 F.2d 901, 912-13 (D.C. Cir. 1987),

and Dozier v. Ford Motor Co., 702 F.2d 1189, 1192

(D.C. Cir. 1983)). Here, EPA took a new 2024 action,

and Williams alleged that the underlying 2022 actions

were merely the acts of subordinate EPA staff.

C. Neither this Court nor the Court of

Appeals should hold petitioner’s action

untimely without the record.

Without the benefit of the administrative record,

the motions panel found a challenge to the 2022 action

on Williams’ application both final, App:19a, and ripe.

App:1a-2a. Significantly, subject-matter jurisdiction

under §307(b)(1) requires finality. POET Biorefining,

LLC v. EPA, 970 F.3d 392, 404-05 (D.C. Cir. 2020)

(“finality is jurisdictional under the Clean Air Act”)

(cleaned up); cf. John Doe, Inc. v. DEA, 484 F.3d 561,

565 (D.C. Cir. 2007) (“under the APA … the

requirement of ‘final agency action’ is not

jurisdictional”). Agency action can be final, without

being ripe: “a final agency action nonetheless can be

unripe for judicial review.” Pfizer Inc. v. Shalala, 182

F.3d 975, 979-80 (D.C. Cir. 1999); cf. Louisiana Envtl.

Action Network v. Browner, 87 F.3d 1379, 1385 (D.C.

Cir. 1996) (60-day window does not run on unripe

claims). The motions panel’s error, however, was far

more basic.

[The] administrative record is not, however,

before us. The lower courts based their review

on the litigation affidavits that were

presented. These affidavits were merely “post

hoc”

rationalizations,

which

have

traditionally been found to be an inadequate

basis for review. And they clearly do not

constitute the “whole record” compiled by the

agency: the basis for review required by § 706

of the Administrative Procedure Act. [¶] Thus

it is necessary to remand this case … for

plenary review of the Secretary's decision.

That review is to be based on the full

administrative record that was before the

Secretary at the time he made his decision.

Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 419-20 (1971) (cleaned up); accord Walter O.

Boswell Memorial Hosp. v. Heckler, 749 F.2d 788, 792

(D.C. Cir. 1984) (remanding to district court to

reconsider based on whole record); accord Rodway v.

Dep’t of Agriculture, 514 F.2d 809, 816-17 (D.C. Cir.

1975); Am. Bioscience, Inc. v. Thompson, 243 F.3d 579,

582 (D.C. Cir. 2001). The need for the record is basic

“Administrative Law 101,” and the motion panel erred

in deciding the case based on unsworn statements in

EPA’s motion papers (i.e., not even affidavits). That is

clear error.

II. THE 1990 AMENDMENTS TO §304 DID NOT

REMOVE THE COURTS OF APPEALS’ §307

JURISDICTION OVER APA UNLAWFULLYWITHHELD CLAIMS.

Notwithstanding the 1990 amendment expanding

citizen-suit authority and jurisdiction in the district

courts, merits review under the Clean Air Act remains

an appellate process via petitions for review. Even if

Congress did not make that jurisdiction exclusive, the

longstanding rationale for confining merits review in

the appellate process is efficiency and uniformity. See,

e.g., 28 U.S.C. §1651(a); Whitney Nat'l Bank v. Bank

of New Orleans & Tr. Co., 379 U.S. 411, 421-22 (1965);

FCC v. ITT World Commc'ns, Inc., 466 U.S. 463, 468

(1984); accord Telecomms. Research & Action Ctr. v.

FCC, 750 F.2d 70, 75-77 (D.C. Cir. 1984) (“TRAC”);

Sierra Club v. Thomas, 828 F.2d 783, 787 (D.C. Cir.

1987) (applying TRAC to Clean Air Act), abrogated in

part on other grounds, PUB. L. NO. 101-549, §707(f),

104 Stat. 2399, 2683 (1990). The question is the extent

to which the 1990 amendments abrogated Sierra Club

v. Thomas to bring forward disfavored bifurcation of

merits review via disfavored repeal by implication.

By way of background, as originally enacted, the

Clean Air Act was subject to judicial review under the

terms of the APA. See, e.g., 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

APA provides for compelling agency action unlawfully

withheld and agency action unreasonably delayed. 5

U.S.C. §706(1). The former is synonymous with

mandamus, Arizona v. Inter Tribal Council of

Arizona, Inc., 570 U.S. 1, 19 n.10 (2013), and is

available under the APA. Payne Enters., Inc. v. United

States, 837 F.2d 486, 494 (D.C. Cir. 1988); Am. Dairy

of Evansville, Inc. v. Bergland, 627 F.2d 1252, 1262

(D.C. Cir. 1980). Together, EPA’s regulations and 5

U.S.C. §555(b) gave EPA a clear duty to act on and to

grant Williams’ application 40 C.F.R. §84.15(e)(3),

which is enforceable as action unlawfully withheld

under the APA. See 5 U.S.C. §706(1).6

A. Repeals by implications are disfavored,

especially when they repeal causes of

action as especially, especially for APA

claims.

Repeals by implication require “clear and

manifest” legislative intent, Nat’l Ass’n of Home

Builders v. Defenders of Wildlife, 551 U.S. 644, 662

(2007) (“NAHB”), and “this canon of construction

applies with particular force when the asserted

repealer would remove a remedy otherwise available.”

Schlesinger v. Councilman, 420 U.S. 738, 752 (1975).

For post-APA legislation like the Clean Air Act, the

canon is even more adamant: “Subsequent statute

may not be held to supersede or modify [the APA and

related provisions] except to the extent that it does so

expressly.” 5 U.S.C. §559; Dickinson v. Zurko, 527

U.S. 150, 155 (1999). There is no “clear and manifest,”

much less express, legislative intent to repeal APA

The motions panel considered a purportedly “unchallenged

regulation tying a new market entrant’s receipt of 2025

allowances to that entity’s receipt of 2023 allowances,” App:20a

(citing 40 C.F.R. §84.11(b)(1)), but Williams disputes EPA’s

interpretation of the regulation and, in any event, petitioned

EPA to repeal that provision. See 5 U.S.C. §553(e).

review of action unlawfully withheld or to consign

that review to district courts.

1. This Court’s Bennett holding could

guide this Court to find APA merits

review under §307(b)(1).

This Court already has held that citizen-suit

provisions do not displace or preclude otherwiseapplicable APA review:

No one contends (and it would not be

maintainable) that the causes of action

against the Secretary set forth in the ESA’s

citizen-suit

provision

are

exclusive,

supplanting those provided by the APA.

Bennett, 520 U.S. at 175. At least for merits review for

unlawfully withheld EPA action, the 1990

amendments to §304(a) should not displace APA

review under §307(b)(1).

2. Then-Judge Kavanaugh’s Mexichem

dissent could guide this Court to

find APA merits review under

§307(b)(1) for actions outside §307(d).

In a case involving an EPA action to which §307(d)

did apply—which therefore expressly exempted a few

listed parts of the APA, 42 U.S.C. §7607(d)(1)7—thenJudge Kavanaugh explained in dissent that the other,

unexcepted parts of the APA (namely, 5 U.S.C. §705)

should continue to apply the Clean Air Act. Mexichem

Specialty Resins, Inc. v. EPA, 787 F.3d 544, 562 (D.C.

Cir. 2015) (Kavanaugh, J., dissenting in part). When

§307(d) does not apply, the Clean Air Act’s plain terms

“ 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.” Id.

show that none of the APA is excepted. See 42 U.S.C.

§7607(d)(1). For an action covered by §307(d), thenJudge Kavanaugh was willing to disregard an express

provision, 42 U.S.C. §7607(d)(7)(B), to honor an APA

provision that §307(d) did not except. For EPA action

outside §307(d), none of the APA is excepted.8

B. The motions panel abused its discretion

by not deciding the jurisdictional issue.

Appellate courts review lower courts’ decisions not

to transfer an action pursuant to 28 U.S.C. §1631

under an abuse-of-discretion standard. See, e.g., Paul

v. INS, 348 F.3d 43, 46 (2d Cir. 2003) (Sotomayor, J.);

Danziger & De Llano, LLP v. Morgan Verkamp LLC,

948 F.3d 124, 129 (3d Cir. 2020) (same); 17 MOORE'S

FEDERAL PRACTICE - CIVIL §111.63 (same, collecting

cases). This Court has reversed lower courts’ failure to

transfer, albeit for dismissal under 28 U.S.C.

§1406(a). Goldlawr, Inc. v. Heiman, 369 U.S. 463, 46566 (1962). A federal “court would necessarily abuse its

discretion if it based its ruling on an erroneous view

of the law,” Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 405 (1990), and federal courts have a “virtually

unflagging obligation ... to exercise the jurisdiction

given them.” Colorado River Water Conserv. Dist. v.

United States, 424 U.S. 800, 817 (1976).

The motions panel denied transfer to the district

court on the rationales that jurisdiction was “at best

questionable” and Williams already had filed a suit

there. App:2a. Both rationales abused the motion

Indeed, the issue of unanswered administrative petitions

would not arise because §307(d) allows treating EPA’s failure to

answer them or convene a proceeding as a denial and also

provides 30 days after EPA acts to supplement the record. See 42

U.S.C. §7607(d)(5)(iv), (d)(7)(B).

panel’s discretion—and shirked its obligation—by

failing even to consider transfer to the district court.

First, Williams II held that the district court has

jurisdiction. See Section II.C.2, infra. To deny transfer

based on questioning Williams II now is precisely the

type of jurisdictional ping pong that litigants should

not have to endure. There is a right answer, and this

Court should ask the Court of Appeals to pick one—

not both or neither—in a reasoned manner.

Second, although Williams has a case pending in

district court, the operative complaint there does not

include citizen-suit claims, and EPA has opposed—on

jurisdictional grounds—Williams’ motion for leave to

amend the complaint to add citizen-suit claims.

Transfer would avoid this jurisdictional ping pong.

C. The 1990 expansion of citizen suits for

unreasonable-delay claims did not

displace merits review under §307(b)(1).

This Court need not decide now whether the 1990

amendments actually gave district courts authority

and jurisdiction to issue mandamus-style merits relief

for “a failure … to perform any act or duty under …

which is not discretionary with the Administrator.”

See 42 U.S.C. §7604(a)(2) (emphasis added). It would

be enough for the Court to decide that—under the

canon against repeals by implication and Bennett—

the 1990 citizen-suit expansion did not clearly and

manifestly erase the Courts of Appeals’ pre-1990

authority and jurisdiction to resolve mandamus-style

issues under the APA and §307(b)(1), at least where

§307(d)’s APA carveout does not apply.

1. District courts likely lack authority

or jurisdiction to issue merits relief.

Although the 1990 amendments transferred to the

district courts actions to compel EPA to take certain

nondiscretionary actions, 42 U.S.C. §7604(a)(2), that

transfer does not apply to compelling final EPA action

that alters existing EPA final agency action

reviewable under 42 U.S.C. §7607(b)(1). Env’t Def.

Fund v. Thomas, 870 F.2d 892, 899 (2d Cir. 1989);

Sierra Club v. Browner, 130 F.Supp.2d 78, 90 (D.D.C.

2001). Nor could it. Transferring ultimate relief over

granting a nondiscretionary change to an existing

final EPA action would transfer the Court of Appeals’

exclusive §307(b)(1) jurisdiction to district courts.

That does not follow from the 1990 amendments to

§304(a)(2) for at least two reasons.

First, the district courts’ authority does not extend

to review that would affect EPA action reviewable in

the courts of appeal. Mexichem, 787 F.3d at 553 n.6

(citing S. REP. NO. 101-228, at 374 (1989) for

proposition that the 1990 amendments to §304

abrogated Sierra Club v. Thomas only “partly”). As

the Senate Report makes clear, inaction that refuses

to modify a prior final EPA action or that itself

constitutes a final refusal to act is reviewable in the

courts of appeals:

[W]here adjudication of a challenge to EPA

inaction would effectively require a court to

overturn final action previously taken by the

EPA, jurisdiction over the challenge would

[lie] in the court of appeals under section

307(b)(l). See Indiana & Michigan Electric Co.

v US. EPA, 733 F. 2d 489, 490 (7th Cir. 1984)

(courts of appeals have jurisdiction over cases

where a complaint about agency inaction is

“embedded” in a challenge to agency action).

In addition, where the EPA inaction

culminates in a formal decision not to take

action, such a situation would constitute a

“denial” within the meaning of APA section

551(13) and would likewise be reviewable in

the courts of appeal under section 307(b)(1).

S. REP. NO. 101-228, at 374. Granting Williams’

application is not a simple binary yes-no decision that

affects only Williams, as the Eleventh Circuit held in

requiring RMS to sue in the District of Columbia

Circuit because RMS’s claim about its allocation

necessarily affected all other allocations: “Rather, the

Allocation Notice is better understood as one EPA

action, and RMS’s allocation an inseparable

component of it.” RMS of Ga., LLC v. United States

EPA, 64 F.4th 1368, 1374 (11th Cir. 2023). Under the

circumstances, Williams’ petition here falls within the

exception to the 1990 amendment recognized in

Mexichem.

Second, prodding EPA to act is not the “same

genre” as the merits relief that Williams seeks. El Rio

Santa Cruz Neighborhood Health Ctr. v. United States

HHS, 396 F.3d 1265, 1271 (D.C. Cir. 2005) (quoting

Women’s Equity Action League v. Cavazos, 906 F.2d

742, 751 (D.C. Cir. 1990) (“WEAL”)). In WEAL, suing

schools to stop discrimination was deemed the same

genre as suing the Department of Education to

enforce its anti-discrimination rules. WEAL, 906 F.2d

at 751. Prodding EPA to act is not the same genre as

merits relief (i.e., the former is procedural, the latter

substantive). As indicated, APA review includes both

agency action “unlawfully withheld” and agency

action “unreasonably delayed,” 5 U.S.C. §706(1), but

the 1990 amendments transferred only the latter to

the citizen-suit provision, 42 U.S.C. §7604(a), not the

former. As such, the courts of appeals retain their

exclusive jurisdiction over claims of EPA action

unlawfully withheld. That answers the jurisdictional

question, even if a court of appeals elects—in its

discretion—to order a timely agency response in lieu

of reaching the merits. See, e.g., Home Box Office, Inc.

v. FCC, 567 F.2d 9, 52 (D.C. Cir. 1977) (courts sua

sponte may order agency to clarify facts); cf. Greater

Boston Television Corp. v. FCC, 463 F.2d 268, 283

(D.C. Cir. 1971) (precedent “favor[s] remand, in the

interest of a just result, where there has been a

change in [core] circumstances, subsequent to

administrative decision and prior to court decision”);

Washington Ass’n for Television & Children v. FCC,

712 F.2d 677, 682 (D.C. Cir. 1983) (remand

appropriate for “a serious impropriety in the

administrative process” or issues that could not have

been raised before agency). These APA tools remain

available in merits challenges, outside the citizen-suit

process for pure unreasonable-delay claims.

2. While likely wrong and unintended,

Williams II held that §304 empowers

district courts to issue merits relief.

Williams II indisputably sought mandamus relief

(i.e., “grant my application” relief, not “hurry up”

relief), and the D.C. Circuit dismissed for lack of

jurisdiction, citing 42 U.S.C. §7604(a):

Because

petitioner

seeks

compel

respondent to act on his pending

reconsideration petition, jurisdiction over this

case lies in the district court. See 42 U.S.C.

§§7604(a), 7675(k)(1)(C); Mexichem Specialty

Resins, Inc. v. EPA, 787 F.3d 544, 553 n.6

(D.C. Cir. 2015).

In re Williams, 2023 U.S. App. LEXIS 33969, at *1

(D.C. Cir. Dec. 21, 2023) (No. 23-1269) (cleaned up).

To be sure, the Williams II merits panel focused on

administrative petitions, not on the mandamus

sought for Williams’ underlying application. But

“judgments, not opinions,” are what counts. Harvey v.

District of Columbia, 798 F.3d 1042, 1056 (D.C. Cir.

2015) (cleaned up); Chevron U.S.A. v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842

(1984), overruled in part on other grounds, Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024).

And the judgment in Williams II was that the district

court was where Williams must seek mandamus relief

to compel EPA to grant his application. While likely

wrong and almost certainly unintended, that is what

Williams II held. That holding binds on the parties if

asserted as a basis for res judicata. Williams asserts

res judicata on this point in district court but is happy

to waive it here if this Court remands for the D.C.

Circuit to reassess the issue. Williams is amenable to

either court having mandamus power and jurisdiction,

but not amenable to neither court having mandamus

power and jurisdiction. Neither EPA nor the lower

courts can point in opposite directions and say “go sue

there.”

D. Summary reversal and remand to

consider the jurisdictional question is

appropriate.

Because this is “a court of review, not of first

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

(2005), and the nettlesome issue of parsing the lower

courts’ mandamus authority and jurisdiction would

benefit from a non-summary review of the issue from

the Court of Appeals, Williams asks this Court merely

to reverse the Court of Appeals’ dismissal for the clear

error of ignoring Williams II, refusing to transfer for

the potentially illusory rationale that Williams has

already sued in district court, and for deciding the

timeliness issue about challenging EPA staff’s 2022

actions without the record. Indeed, even is the district

court allows Williams to add his citizen-suit claims to

the district court complaint, EPA is likely to move to

dismiss those new counts on jurisdictional grounds,

and the non-prevailing party is likely to appeal. After

all that, the issue would return to the Court of Appeals

for resolution. The “interests of justice” under 28

U.S.C. §1631 and judicial economy warrant the Court

of Appeals’ answering the issue now, not later. Cf.

Goldlawr, 369 U.S. at 465-66. Williams implores this

Court to send the issue back to the Court of Appeals

to resolve this jurisdictional ping pong.

Summary action would allow this action to join

Williams V in the Court of Appeals and is warranted

for at least three reasons.

• First, summary reversal based on the still-recent

Harrow decision—including its effect under Bobby

and Montana on res judicata—is warranted. See

Lawrence v. Chater, 516 U.S. 163, 167 (1996). This

Court does not need full merits briefing to

dispatch the Court of Appeals’ clearly erroneous

precedent on jurisdictional 60-day windows. See

Section I.A, supra.

• Second, the clear error of deciding an APA case

without the record warrants summary action. See,

e.g., Jefferson v. Upton, 560 U.S. 284, 293 (2010)

(reversing where lower courts failed to consider

controlling standards). Again, full merits briefing

is not needed to decide that the Court of Appeals’

divinations about what the record may or may not

show cannot suffice. See Section I.C, supra.

•

This Court plainly erred both in ruling without a

record, see Section I.C, supra, and in finding that

citizen suits displace pre-existing APA review. See

Section II.A, supra. Summary reversal on these

“narrow” and well-understood grounds is the only

action that the Court need take now. See Tolan v.

Cotton, 572 U.S. 650, 655 n.3 (2014). A reasoned

Court of Appeals decision after remand may make

it necessary for this Court finally to resolve the

tradeoff between citizen suits and §307(b)(1), but

for now, summary reversal would advance those

issues.

Far from a fact-bound inquiry, this case presents a

fact-free inquiry of purely legal issues on which the

motions panel clearly erred. Summary reversal is not

only warranted but the most efficient way to resolve

the important issues presented here. See Section III,

infra.

III. THE ISSUES HERE ARE IMPORTANT,

RECURRING, AND SQUARELY SET FOR

SUMMARY DECISION.

The Clean Air Act’s wide scope covers not only key

national industries—such as electrical power, fuel,

and transportation—that indirectly affect everyone

but also has numerous direct effects such as land-use

planning, consumer products, and appliances. The

Act’s implementation is thus vitally important and

worthy of this Court’s review on the following

recurring issues presented here.

• The APA’s ongoing application to reviewing EPA

actions outside the Clean Air Act’s abbreviated

review procedures in §307(d).

•

The non-jurisdictional nature of trigger—namely,

notice or publication—for the 60-day window for

review under §307(b)(1).

• The trigger for commencing the running of the 60day claims-processing rule when EPA conceals the

basis for its initial action or when the

Administrator (or the Administrator’s delegee)

later ratifies EPA staff’s preliminary analysis.

• The need for—and a petitioner’s right to—EPA’s

record under 5 U.S.C. §706, 28 U.S.C. §2112(b),

and FED. R. APP. P. 17(b)(3).

• The division of jurisdiction—for EPA inaction—

between the courts of appeals under §307(b)(1)

and the district courts under §304(a)(2).

All these purely legal and recurring issues are

important and squarely presented here.

The D.C. Circuit’s exclusive jurisdiction to review

nationally applicable Clean Air Act rules, 42 U.S.C.

§7607(b)(1), and that court’s abdication of that role

here warrant this Court’s intervention. Specifically, it

falls to this Court to ensure that review under this farreaching statute takes place in that “single court

intimately familiar with administrative procedures”

to “insur[e] that [the Clean Air Act’s] substantive

provisions … would be uniformly applied" nationwide.

Adamo Wrecking, 434 U.S. at 283-84.

CONCLUSION

The petition for the writ of certiorari should be

granted, the Court of Appeals’ judgment should be

summarily reversed, and this action should be

remanded to the Court of Appeals to determine in the

first instance whether the Court of Appeals should

hear the merits or should transfer the action to the

district court.

March 9, 2026

Respectfully submitted,

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Ave. NW

Suite 700-1A

Washington, DC 20036

202-899-2987

ljoseph@larryjoseph.com

Counsel for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.