Polyweave Packaging, Inc. v. Peter Buttigieg ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0230p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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POLYWEAVE PACKAGING, INC., a Delaware
│
corporation,
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Plaintiff-Appellant, │
> No. 21-5929
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v. │
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PETER PAUL MONTGOMERY BUTTIGIEG, Secretary, │
United States Department of Transportation, in his │
official capacity, │
Defendant-Appellee. │
┘
Appeal from the United States District Court for the Western District of Kentucky at Owensboro.
No. 4:21-cv-00054—Joseph H. McKinley, Jr., District Judge.
Argued: May 5, 2022
Decided and Filed: October 20, 2022
Before: ROGERS, KETHLEDGE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Sheng Li, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for Appellant.
Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Sheng Li, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C.,
Christopher Wiest, CHRIS WIEST, ATTORNEY AT LAW, PLLC, Crestview Hills, Kentucky,
for Appellant. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
ROGERS, J., delivered the opinion of the court in which KETHLEDGE, J., joined.
MURPHY, J. (pp. 16–25), delivered a separate opinion concurring in the judgment.
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. When Congress places judicial review of certain types of
agency action in the court of appeals rather than the district court, this jurisdictional allocation
cannot be circumvented by suing in the district court to challenge agency procedures used (or
omitted) in the proceedings leading to such actions, at least where court-of-appeals jurisdiction
provides a fully effective forum to address such arguments. This venerable principle without
more supports the district court’s dismissal of plaintiff’s claims in this case.
Plaintiff Polyweave Packaging, Inc. makes packaging for the safe transportation of
hazardous materials. Following an investigation of Polyweave, the Pipeline and Hazardous
Materials Safety Administration—an operating administration within the Department of
Transportation—issued an order finding that Polyweave had violated federal regulations and
assessed a civil penalty of $14,460. In addition to seeking judicial review of that civil-penalty
order in the court of appeals, Polyweave brought this action in district court seeking injunctive
and declaratory relief to prevent the Department of Transportation from rescinding a regulation
known as Subpart D. Subpart D sets forth several requirements for enforcement actions taken by
DOT operating administrations, such as the enforcement proceeding against Polyweave.
Polyweave argues that the DOT improperly rescinded Subpart D and alleges that Polyweave has
incurred procedural injury in the underlying enforcement proceeding as a result. The district
court however lacked jurisdiction over Polyweave’s claims because the court of appeals’
exclusive jurisdiction over judicial review of the underlying agency order bars Polyweave from
attempting to litigate the rescission of Subpart D in the district court.
I.
As alleged in the complaint, the Pipeline and Hazardous Materials Safety Administration
(PHMSA) began investigating Polyweave in March 2015 after one of the PHMSA’s inspectors
paid an unannounced visit to Polyweave’s Madisonville, Kentucky facility. On December 30,
2016, PHMSA attorneys signed a Notice of Probable Violation, alleging that Polyweave had
committed four violations of federal regulations prior to November 2015. Polyweave learned
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about that notice in February 2017, and Polyweave’s president asked the PHMSA’s Office of
Chief Counsel to adjudicate the matter. The PHMSA’s Chief Counsel issued an order on July
20, 2020, finding that Polyweave had committed the violations and assessing a fine of $14,460.
Polyweave was served with this order on March 8, 2021,1 and Polyweave timely filed an
administrative appeal. After Polyweave filed the separate lawsuit in district court, the PHMSA
issued a final order denying Polyweave’s administrative appeal, and Polyweave timely filed an
appeal of that order to the Sixth Circuit pursuant to 49 U.S.C. § 5127.
The crux of the separate litigation in the district court below involves a set of regulations
known as Subpart D, which was originally promulgated by the Secretary of the Department of
Transportation to establish certain requirements to be followed in enforcement proceedings.
Subpart D was promulgated on December 27, 2019, following a memorandum by the DOT’s
general counsel, titled, “Procedural Requirements for DOT Enforcement Actions” and Executive
Order 13982, titled, “Promoting the Rule of Law Through Transparency and Fairness in Civil
Administrative Enforcement and Adjudication.” Administrative Rulemaking, Guidance, and
Enforcement Procedures, 84 Fed. Reg. 71714, 71715–16, 71718 (Dec. 27, 2019) (to be codified
at 49 C.F.R. §§ 5.53–5.111); see also R. 1-2 (General Counsel Memo); Promoting the Rule of
Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,
84 Fed. Reg. 55239 (2019) (Executive Order 13982). The then-Secretary, Elaine Chao,
promulgated Subpart D pursuant to her general rulemaking authority under 49 U.S.C. § 322(a).
Administrative Rulemaking, Guidance, and Enforcement Procedures, 84 Fed. Reg. at 71718.
The DOT did not engage in notice and comment rulemaking when adopting Subpart D because
the final rule “merely incorporate[d] existing internal procedures applicable to the Department’s
administrative procedures into the Code of Federal Regulations.” Id. at 71716.
Subpart D set out several requirements that “appl[ied] to all enforcement actions taken by
each DOT operating administration (OA) and each component of the Office of the Secretary of
Transportation (OST) with enforcement authority.” 49 C.F.R. § 5.53 (2020); Administrative
Rulemaking, Guidance, and Enforcement Procedures, 84 Fed. Reg. at 71729. Polyweave
1
The delay in Polyweave’s learning of the Notice of Probable Violation and the order was due to service at
the wrong address by the PHMSA.
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acknowledges that some of these requirements are “procedural rules of agency organization,
procedure, or practice.” Polyweave also contends that some of the requirements in Subpart D are
“substantive rules affecting Polyweave’s due-process rights and protections.” These
requirements include: 49 C.F.R. §§ 5.59 (Enforcement policy generally), 5.61 (Investigative
functions), 5.65 (Proper exercise of prosecutorial and enforcement discretion), 5.67 (Duty to
review for legal sufficiency), 5.69 (Fair notice), 5.83 (Duty to disclose exculpatory evidence),
5.97 (Basis for civil penalties and disclosures thereof). See 84 Fed. Reg. at 71729–71732. For
example, Subpart D requires DOT operating administrations—such as the PHMSA—to follow
the principle articulated in Brady v. Maryland, 373 U.S. 83 (1963), and disclose any exculpatory
evidence in the agency’s possession to the subject of the enforcement action. 49 C.F.R. § 5.83(2020); see Administrative Rulemaking, Guidance, and Enforcement Procedures, § 5.83, 84 Fed.
Reg. at 71731.
On April 2, 2021, following the change of presidential administrations, the current
Secretary, Pete Buttigieg, rescinded Subpart D.2 See 86 Fed. Reg. 17292, 17294 (2021). The
Secretary did not engage in notice and comment as part of the decision to rescind Subpart D
because, he said, the rescission “revises only internal processes applicable to the Department’s
administrative procedures,” and the rule is therefore “a rule of agency procedure for which notice
and comment are not required.” 86 Fed. Reg. at 17293; see 5 U.S.C. § 553(b)(A).
While Polyweave’s administrative appeal of the civil-penalty order was pending,
Polyweave brought this action in district court seeking injunctive and declaratory relief to
prevent the Secretary from rescinding Subpart D. Polyweave explains in its appellate briefing
that it filed suit “to restore Polyweave’s due-process rights in its ongoing administrative appeal.”
In its complaint, Polyweave contended that, if the Secretary had not improperly rescinded the
requirements outlined in Subpart D, the PHMSA would not have been able to assess the civil
penalty against Polyweave in the underlying enforcement proceeding.
2
The Secretary rescinded Subpart D (April 2, 2021) after Polyweave filed its administrative appeal of the
civil-penalty order (March 25, 2021) but before Polyweave requested exculpatory evidence in the underlying
enforcement proceeding (May 6, 2021).
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At bottom, Polyweave contends that the rescission of Subpart D violated the
Administrative Procedure Act for two reasons: first, Polyweave argues that the Secretary’s
decision should be set aside because the Secretary’s reasons for rescinding Subpart D are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; second,
Polyweave asserts that the Secretary failed to provide it with notice and an opportunity to
comment on the decision to rescind Subpart D.
The Secretary moved to dismiss Polyweave’s claims, arguing that the district court
lacked jurisdiction because Polyweave did not have standing to assert those claims and because
49 U.S.C. § 5127 placed exclusive jurisdiction over Polyweave’s claims in the court of appeals,
not the district court. The district court granted the motion to dismiss. The district court
evaluated each of Polyweave’s asserted injuries and concluded that none was sufficient to
establish standing to challenge the rescission of Subpart D.
The district court also considered in the alternative whether Polyweave’s claim was
barred by the exclusive-jurisdiction provision of PHMSA’s organic statute. The court
determined that the language of the exclusive-jurisdiction provision, 49 U.S.C. § 5127, did not
bar Polyweave’s APA claims because the language of the statute limits the scope of the
exclusive jurisdiction to final action of the Secretary under Chapter 51 of Title 49 (enforcement
actions for transport of hazardous waste), not to “the Secretary’s rulemaking authority
generally.” Further, the court determined that Polyweave’s challenge was not inescapably
intertwined with the underlying enforcement action.
The court alternatively concluded that, even if it had jurisdiction, Polyweave was not
entitled to a preliminary injunction because Polyweave had not established a likelihood of
success on the merits of either of its claims or that Polyweave would suffer irreparable harm
without an injunction. With regard to Polyweave’s arbitrary-and-capricious claim, the court
determined that the Secretary’s decision to rescind Subpart D was judicially unreviewable
because the decision was committed to agency discretion by law. See 5 U.S.C. § 702(a)(2).
The court also concluded that Polyweave had not established a likelihood of success on
its notice-and-comment claim because the Secretary needed to use only the same procedures to
repeal Subpart D as were used to promulgate Subpart D. The court determined that since the
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former Secretary did not engage in notice and comment to promulgate Subpart D, the Secretary
did not violate the APA’s notice-and-comment requirements when he rescinded Subpart D
without notice and comment. Relying on “the same reasons that doomed Polyweave’s standing
arguments,” the court also determined that Polyweave would not suffer irreparable harm without
a preliminary injunction. Polyweave appeals.
II.
We need not address either the district court’s standing analysis or its preliminary rulings
on the merits of Polyweave’s claims. Affirmance is required because the district court lacked
jurisdiction to consider Polyweave’s APA claims. The only plausible bases for asserting Article
III injury in this case, which involves enforcement procedures, can be asserted in review of the
agency action in which those procedures were applied or withheld, review that lies exclusively in
the court of appeals.
Under 49 U.S.C. § 5127(c) of the Hazardous Materials Transportation Act, “a person
adversely affected or aggrieved by a final action of the Secretary under [] chapter [51] may
petition for review of the final action in the United States Court of Appeals for the District of
Columbia or in the court of appeals for the United States for the circuit in which the person
resides or has its principal place of business.” That “court has exclusive jurisdiction, as provided
in subchapter II of chapter 5 of title 5, to affirm or set aside any part of the Secretary’s final
action and may order the Secretary to conduct further proceedings.” Id. This exclusive
jurisdiction applies to Polyweave’s enforcement proceeding brought by the PHMSA, an
operating administration of the DOT. The exclusive-jurisdiction provision applies also to
Polyweave’s APA claims here because Polyweave’s claims effectively seek a determination of
what procedures apply in Polyweave’s underlying enforcement proceeding, and Polyweave’s
APA claims are therefore inescapably intertwined with the civil-penalty order. Exclusive
jurisdiction “necessarily preclude[s] de novo litigation between the parties of all issues inhering
in the controversy, and all other modes of judicial review.” City of Tacoma v. Taxpayers of
Tacoma, 357 U.S. 320, 337 (1958).
Because Polyweave’s alleged injuries in this case are incurred as part of the enforcement
proceeding and Polyweave could argue on court-of-appeals review of the civil-penalty order that
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 7
Subpart D was invalidly rescinded, Polyweave’s claims brought in the district-court suit are
inescapably intertwined with the civil-penalty order and therefore outside the jurisdiction of the
district court. As the basis for challenging the rescission of Subpart D, Polyweave alleges that it
was injured by the civil-penalty order from the underlying enforcement proceeding. Each of
Polyweave’s standing arguments asserted that Polyweave was injured because of the alleged
failure to comply with Subpart D in the underlying proceeding. Moreover, the court of appeals
would have authority on direct review of the final PHSMA order to provide meaningful review
of Polyweave’s claim that Subpart D was improperly rescinded. To the extent that Polyweave
has standing at all to challenge the rescission of Subpart D, Polyweave’s claim that the Secretary
did not adhere to the APA when he rescinded Subpart D could be litigated as part of
Polyweave’s challenge to the civil-penalty order. For example, if the PHMSA argued on direct
review of its civil-penalty order that Polyweave is not entitled to the requirements in Subpart D
because that regulation was properly rescinded, Polyweave can argue that the PHMSA is still
required to follow Subpart D because the Secretary did not validly rescind Subpart D. As a
general matter, a party seeking appellate review of an agency order may raise procedural
challenges to the applicable agency regulations as a basis for reversing the order. See Oakbrook
v. Land Holdings, LLC v. Comm’r of Internal Revenue, 28 F.4th 700, 710 (6th Cir. 2022).
Both Supreme Court precedent and persuasive circuit cases illustrate that exclusive-
jurisdiction provisions apply to non-collateral issues such as Polyweave’s APA claims.
The Supreme Court’s opinion in City of Tacoma supports a broad interpretation of
exclusive statutory assignments to courts of appeals of the jurisdiction to review final agency
actions. In that case, the Federal Power Commission issued a license to construct a power plant
to the city of Tacoma. 337 U.S. at 326. The State of Washington appealed the issuance of that
license to the Ninth Circuit, which the Ninth Circuit eventually affirmed. Id. at 327–28. In a
separate state-court proceeding, however, Washington asserted a cross-claim that raised the same
objections Washington had made before the Ninth Circuit. Id. at 329. The Washington Supreme
Court affirmed a state-court order that enjoined the City from proceeding on the project. Id. at
332. The United States Supreme Court concluded that an exclusive-jurisdiction provision
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required Washington to raise its objections to the license only in the relevant federal court of
appeals. Id. at 335–336. The Supreme Court explained:
It can hardly be doubted that Congress, acting within its constitutional powers,
may prescribe the procedures and conditions under which, and the courts in
which, judicial review of administrative orders may be had. So acting, Congress
in § 313(b) prescribed the specific, complete and exclusive mode for judicial
review of the Commission’s orders. It there provided that any party aggrieved by
the Commission’s order may have judicial review, upon all issues raised before
the Commission in the motion for rehearing, by the Court of Appeals which “shall
have exclusive jurisdiction to affirm, modify or set aside such order in whole or in
part,” and that “[t]he judgment and decree of the court, affirming, modifying , or
setting aside, in whole or in part, any such order of the Commission, shall be
final, subject to review by the Supreme Court of the United States upon certiorari
or certification.” It thereby necessarily precluded de novo litigation between the
parties of all issues inhering in the controversy, and all other modes of judicial
review. Hence, upon judicial review of the Commission’s order, all objections to
the order, to the license it directs to be issued, and to the legal competence of the
licensee to execute its terms, must be made in the Court of Appeals or not at all.
For Congress, acting within its powers, has declared that the Court of Appeals
shall have “exclusive jurisdiction” to review such orders, and that its judgment
“shall be final,” subject to review by this Court upon certiorari or certification.
Id. at 335–36 (internal citations omitted) (alteration in original, emphasis added). The Court
explained further that the scope of the exclusive-jurisdiction provision was not limited to the
objections actually raised in the Court of Appeals; the exclusive-jurisdiction provision barred all
claims that “could and should have been raised” in the Court of Appeals review of the
Commissioner’s order. Id. at 339.
Our sister circuits have consistently applied the principles in City of Tacoma to dismiss
district-court actions where the plaintiffs’ claims are inescapably intertwined with an
administrative order that is subject to an exclusive-jurisdiction provision. In Tur v. FAA, 104
F.3d 290 (9th Cir. 1997), for example, Tur brought suit against Federal Aviation Administration
(FAA) attorneys in district court after the FAA issued an ordering revoking Tur’s helicopter
pilot’s license. Id. at 291. Tur alleged that the FAA attorneys deprived him of a property
interest (his airman’s certificate) without due process by knowingly using false testimony against
him in the administrative proceeding. Id. The Ninth Circuit reasoned that Tur’s separate lawsuit
was inescapably intertwined with the FAA’s revocation order because “Tur’s suit, if allowed to
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proceed, would result in a new adjudication over the evidence and testimony adduced in the
October 1991 hearing, the credibility determinations made by the ALJ, and, ultimately, the
findings made by the ALJ.” Id. at 292. The applicable exclusive-jurisdiction provision therefore
barred Tur from bringing a Bivens action to vindicate his constitutional rights in a separate suit.
Id. Polyweave’s APA claims suffer from the same flaw. If Polyweave were allowed to maintain
its APA claims against the Secretary in a separate suit, the district court would be required to
determine whether the PHMSA had complied with Subpart D—an issue that would be decided
on direct review—in the analysis of whether Polyweave had standing to bring the APA
challenge.
The Fifth Circuit reasoned similarly in another case involving an FAA order. Ligon v.
LaHood, 614 F.3d 150 (5th Cir. 2010). In that case the Fifth Circuit concluded that a district
court lacked jurisdiction to consider Ligon’s Age Discrimination in Employment Act (ADEA)
challenge to an FAA order. There the FAA issued an order declining to renew some of Ligon’s
delegated authority to inspect and issue certificates that identified aircraft as compliant with FAA
regulations. Id. at 152–53. Ligon filed suit in district court, seeking damages and injunctive
relief pursuant to the ADEA. Id. at 153. The Fifth Circuit noted that “district courts lack
jurisdiction not only over direct challenges to FAA orders, but also over damages claims that are
‘inescapably intertwined with a review of the procedures and merits surrounding an FAA
order,’” and “parties may not avoid administrative review simply by fashioning their attack on an
FAA decision as a constitutional tort claim against individual FAA officers.” Id. at 155 (citation
omitted). After surveying other circuits’ application of the same inescapable-intertwinement
test, the Fifth Circuit concluded that Ligon’s ADEA claims were inescapably intertwined with
the underlying administrative order for two reasons. First, “Ligon’s challenge requires a review
and balancing of the same evidence used by the FAA in deciding not to renew his areas of
authority, and is essentially a challenge to the merits and procedure of a particular order that is
currently pending against Ligon.” Id. at 157. Second, Ligon could have sought his requested
relief—reinstatement—in a direct review of the underlying proceeding. Id. Further, the Fifth
Circuit rejected the contention that the inescapable-intertwinement test could be limited to Bivens
claims; “[i]nstead, what matters is whether the challenge is inescapably intertwined with a
challenge to the order, and would therefore undermine Congress’s intention that FAA orders be
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reviewed in a certain way.” Id. at 157 n.4. See also Merritt v. Shuttle, Inc., 187 F.3d 263, 265
(2d Cir. 1999).
To be sure, there are two cases in which our court has indicated that a district court could
properly exercise jurisdiction over a claim even though the claim was arguably inescapably
intertwined with an order reviewable exclusively in the court of appeals. But these cases are
categorically different. In Burdue v. FAA, 774 F.3d 1076 (6th Cir. 2014), we concluded that
Burdue’s Fifth Amendment due-process challenge to his termination was not inescapably
intertwined with the FAA’s order revoking his certificate to inspect aircraft. Although we
acknowledged our sister circuit’s cases that prohibited separate Bivens actions that required “a
review of the procedures and merits surrounding the FAA’s order,” we distinguished Burdue’s
claims because “Burdue’s constitutional claims are broad challenges to FAA procedures and are
not contingent on the merits of a particular FAA order.” Id. at 1083–84 (citations omitted). In
reaching this conclusion, we relied on McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492
(1991) for the proposition that “a district court may review ‘general collateral challenges to
unconstitutional practices,’” at least where precluding review in the district court “would prevent
meaningful review of Burdue’s constitutional claims.” Id. at 1083–84. But Polyweave’s case
does not involve general collateral challenges to unconstitutional practices, and all of
Polyweave’s statutory and constitutional claims in this case can be meaningfully reviewed in
court of appeals review of the enforcement order. Polyweave’s claims are challenges under the
APA that Polyweave simply cannot bring independently of the enforcement proceeding that is
exclusively reviewable in the court of appeals.
In the second case, Mokdad v. Lynch, 804 F.3d 807 (6th Cir. 2015), we concluded that the
relevant exclusive-jurisdiction provision did not prohibit the district court from addressing the
separate suit. Id. at 815. There, the Government argued in effect that “a direct challenge to one
agency’s order is inescapably intertwined with another agency’s order.” Id. at 814. Mokdad’s
separate lawsuit was challenging the Terrorist Screening Center’s (TSC) decision to place him
on the No Fly List. Id. at 809. The administrative order subject to an exclusive-jurisdiction
provision, however, was the Transportation Security Administration’s (TSA) order that denied
Mokdad’s relief under the Traveler Redress Inquiry Program. Id. The TSC is an interagency
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center administered by the FBI while the TSA is located within the Department of Homeland
Security. Id. at 809, 812. Congress separated the responsibility for placing individuals on the
No Fly List (TSC) from the responsibility to establish redress procedures for travelers who think
they were incorrectly included on the No Fly List (TSA). Id. at 812. As a result, “we decline[d]
to accept the government’s invitation to expand the inescapable-intertwinement doctrine so as to
find that Mokdad’s claim against the TSC is pulled within the ambit of the exclusive-review
statute that applies to TSA.” Id. at 815. Polyweave’s claim here clearly differs from the claims
in Mokdad because Polyweave is not challenging the action of a separate agency. Instead,
Polyweave is challenging the rules—set by the DOT—that apply in an administrative proceeding
run by the PHMSA, a part of the DOT. Our decision in Mokdad therefore does not require, or
even support, allowing Polyweave to maintain its APA claims in a separate action.
The conclusion that the exclusive-jurisdiction provision prohibits Polyweave from
litigating its APA claims in the district court is also consistent with the Supreme Court’s holding
in Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010),
declining to interpret a statutory judicial review provision as exclusive, and distinguishing for
that purpose the reasoning of the Supreme Court in Thunder Basin Coal Co. v. Reich, 510 U.S.
200, 212–13 (1994). Though the Supreme Court generally assumes that procedures “are to be
exclusive” when Congress “creates procedures ‘designed to permit agency expertise to be
brought to bear on particular problems,’” that presumption does not apply to limit jurisdiction “if
‘a finding of preclusion could foreclose all meaningful judicial review’; if the suit is ‘wholly
collateral to a statute’s review provisions’; and if the claims are ‘outside the agency’s
expertise.’” Free Enterprise Fund, 561 U.S. at 489 (quoting Thunder Basin Coal Co., 510 U.S.
at 212–13). None of these characteristics supports allowing Polyweave to bring its APA claims
in a separate action before the district court.
First, barring Polyweave’s separate lawsuit would not deprive Polyweave of all
meaningful review of its claims. As discussed above, Polyweave could unquestionably have
obtained meaningful judicial review of its APA claims on direct review of the civil-penalty
order. Moreover, this is not a case where Polyweave is being forced to “‘bet the farm . . . by
taking violative action’ before ‘testing the validity of the law,’” such that Polyweave is therefore
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unable to access a meaningful avenue of relief. See Free Enter. Fund, 561 U.S. at 490 (citations
omitted). Here, Polyweave does not challenge the PHMSA’s authority to conduct enforcement
proceedings; Polyweave takes issue only with the rules that apply once the PHMSA initiates
proceedings. The applicable rules only matter to Polyweave once it is the subject of an
enforcement proceeding. Thus, Polyweave can be injured from the rescission of Part D only in
the course of being the subject of an enforcement proceeding, and that enforcement proceeding
provides Polyweave a meaningful avenue of relief through direct review of the civil-penalty
order. As a result, Polyweave does not need to intentionally violate federal regulations to test the
validity of Subpart D; instead Polyweave must simply wait until it has suffered an alleged Article
III injury by being denied the requirements in Subpart D, and then Polyweave can litigate
Subpart D’s validity on direct review of any adverse order. Accordingly, requiring Polyweave to
litigate its APA claims on direct review of the civil-penalty order does not deprive Polyweave of
all meaningful review of those claims.
Second, Polyweave’s APA challenge to the rescission of Subpart D is not wholly
collateral to the civil-penalty order; indeed, it is not collateral at all. Polyweave’s objection to
the rescission of Subpart D requires that Polyweave be subject to Subpart D in the enforcement
process in order for Polyweave have standing at all to challenge the rescission. Polyweave
argues that its challenge to the rescission of Subpart D is entirely different from challenges to the
Secretary’s final action under Chapter 51, which are within the exclusive-jurisdiction provision
of 49 U.S.C. § 5127, because the DOT’s authority to issue and amend Subpart D comes from 49
U.S.C § 322. The Supreme Court considered and rejected a similar argument in Elgin v. Dep’t of
Treasury, 567 U.S. 1, 21 (2012). There, the petitioners contended that their bill-of-attainder and
sex-discrimination claims had “nothing to do with the types of day-to-day personnel actions
adjudicated by the MSPB.” Id. at 21–22. The Supreme Court rejected this contention because,
“[a]s evidenced by their district court complaint, petitioners’ constitutional claims are the vehicle
by which they seek to reverse the removal decisions, to return to federal employment, and to
receive the compensation they would have earned but for the adverse employment action.” Id. at
22. From the face of Polyweave’s complaint, Polyweave has brought its APA claims to the
recission of Subpart D in an effort to undo the underlying enforcement proceeding.
Polyweave’s complaint states, “Upon information and belief, but [for] its decision to imminently
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rescind Subpart D, the Department would not, and indeed could not, have taken” enforcement
action against Polyweave for its alleged violation of federal regulations. Further, Polyweave’s
standing arguments each depend on Polyweave’s currently being subject to an enforcement
proceeding. Polyweave’s case also is not distinguishable on the ground that Polyweave has
drafted its lawsuit without seeking directly to enjoin the civil-penalty order. But by seeking a
ruling about what rules apply in the underlying enforcement proceeding, Polyweave is
effectively attacking the validity of the civil-penalty order. To conclude otherwise would prove
too much. A party could always circumvent an exclusive-jurisdiction provision applicable to
agency action by challenging the promulgation/rescission of the rules used in an agency
proceeding rather than the order resulting from the proceeding. As a result, Polyweave’s APA
claims are not collateral, much less “wholly” collateral, to the civil-penalty order.
Third, Polyweave’s claims do not fall entirely outside the PHMSA’s expertise. True, the
PHMSA may not be able to adjudicate the specific claim that the Secretary violated the APA
when he rescinded Subpart D, but the PHMSA’s expertise could be brought to bear on other
issues that could resolve the enforcement proceeding in Polyweave’s favor. For example, the
PHMSA could have concluded that it did follow all of the procedures in Subpart D, regardless of
whether Subpart D was rescinded—as the PHMSA has in fact claimed—and if confirmed on
direct review, that would mean that Polyweave has suffered no harm that would give it standing
to challenge the rescission of Subpart D. Or, the PHMSA could simply conclude—as Polyweave
claims it should—that Polyweave did not violate any regulations, and that would resolve
Polyweave’s enforcement proceeding in its favor. As the Supreme Court has explained in
another context, where an agency’s “expertise can otherwise be ‘brought to bear’ on [] appeals
that challenge the constitutionality of a statute, we see no reason to conclude that Congress
intended to exempt such claims from exclusive review [before the agency and the court of
appeals].” Elgin, 567 U.S. at 23 (quoting Thunder Basin, 510 U.S. at 214–15). Because the
PHMSA’s expertise could be brought to bear on various issues that address Polyweave’s
enforcement proceeding, the possibility that the PHMSA is not be able to adjudicate
Polyweave’s APA claim does not support presuming that the claim falls outside the exclusive-
jurisdiction provision in 49 U.S.C. § 5127. Thus, none of the Thunder Basin factor supports
allowing Polyweave to bring its APA claims in a separate suit before the district court.
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 14
We recognize that the Supreme Court has granted certiorari in cases from two other
circuits involving whether district courts lack jurisdiction to review, in particular, Appointments
Clause challenges to the legitimacy of Administrative Law Judges, because of organic act
provisions permitting federal court of appeals review of the agency’s final orders. See Cochran
v. SEC, 20 F.4th 194, 198 (5th Cir. 2021) (en banc); Axon Enter., Inc. v. FTC, 986 F.3d 1173,
1180 (9th Cir. 2021). Over a strong dissent, the en banc Fifth Circuit in Cochran held that
15 U.S.C. § 78y of the Securities Exchange Act did not preclude such an action in the district
court, while the Ninth Circuit held to the contrary under analogous provisions of the Federal
Trade Act, 986 F.3d at 1181-89, finding support in opinions of the D.C., Second, and Fourth
Circuits. Id. at 1188. The Fifth Circuit’s outlier decision in Cochran, however, is in any event
distinguishable from Polyweave’s case. The Fifth Circuit relied specifically not only on the
permissive nature of the grant of jurisdiction to the court of appeals in 5 U.S.C. § 78y of the
Securities Exchange Act, but also on a negative inference from explicit language in 15 U.S.C.
§ 78y(a)(3) providing that court of appeals jurisdiction “becomes exclusive” only on the filing of
the petition from the order and the SEC’s filing of its record. Cochran v. SEC, 20 F.4th at 207.
There is no such timing limitation in § 5127. The Fifth Circuit also relied strongly on the
structural nature of Cochran’s challenge:
The nature of [Cochran’s] challenge is structural—it does not depend on the
validity of any substantive aspect of the Exchange Act, nor of any SEC rule,
regulation, or order. Indeed, she is challenging the Exchange Act’s statutory-
review scheme itself. . . . Further, the outcome of her constitutional challenge to
the ALJs’ removal protection will have no bearing on her ultimate liability for
allegedly violating the securities laws.
Cochran v. SEC, 20 F.4th at 207. Polyweave’s challenges are plainly not “structural” in the
sense relied upon by the Fifth Circuit.
Finally, there is no merit to Polyweave’s contention at oral argument that requiring it to
bring its claims on direct appeal through 49 U.S.C. § 5127 would create a nonsensical
dichotomy. The asserted anomaly is that the exclusive-jurisdiction provision would apply to
Polyweave’s claims if Polyweave was subject to an enforcement proceeding, but the provision
would not apply if Polyweave—or some other party—filed the same challenge before it was
subject to an enforcement proceeding. Oral Argument at 5:54–6:15. That argument appears to
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 15
suggest that parties with generalized grievances might be able to challenge the rescission of
Subpart D, which itself is a dubious proposition. The argument fails to recognize that each of
Polyweave’s standing arguments depends on Polyweave’s currently being subject to an
enforcement proceeding. Polyweave does not explain how the existence—or absence—of
administrative proceedings would affect the court in which a party could challenge the rescission
of Subpart D. In other words, to the extent that Polyweave had standing at all to challenge the
recission of Subpart D, Polyweave can do so only on direct review of the civil-penalty order
pursuant to 49 U.S.C. § 5127.
III.
For the foregoing reasons, we affirm the district court’s dismissal of Polyweave’s APA
claims on the alternative ground that these claims are covered by the exclusive-jurisdiction
provision in 49 U.S.C. § 5127(c).
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 16
_______________________________________
CONCURRING IN THE JUDGMENT
_______________________________________
MURPHY, Circuit Judge, concurring in the judgment. In December 2019, the Secretary
of Transportation issued a final rule listing various procedures in the Code of Federal
Regulations that agency officers should follow in all enforcement proceedings. In April 2021,
after a change in administrations, the Secretary issued another final rule rescinding these
procedural regulations. Enmeshed in an enforcement proceeding throughout this time,
Polyweave Packaging sued the Secretary over the decision to rescind the regulations. I agree
with my colleagues that we should affirm the district court’s dismissal of Polyweave’s suit. But
I would take a different path to that result. I would not hold that the district court lacked
jurisdiction because of a statute that gives circuit courts the exclusive power to review the “final
action” in Polyweave’s specific enforcement proceeding. When Polyweave sued, the agency had
not even issued that action. My colleagues’ holding also implicates an issue pending at the
Supreme Court that has engendered a circuit split. I would instead follow the district court’s
reasoning: Polyweave failed to plead how the Secretary’s rescission harmed it. The company
thus lacks Article III standing to challenge the rescission.
*
The Secretary of Transportation enforces the laws (located in Chapter 51 of Title 49) that
regulate the transportation of hazardous materials. See 49 U.S.C. §§ 5101–5128. Congress has
delegated the Secretary’s power to a subagency in the Department of Transportation: the Pipeline
& Hazardous Materials Safety Administration (PHMSA). See id. § 108(f). PHMSA has read
this delegation as giving it the power to issue civil penalties for violations of the chapter. See id.
§ 5123(a)–(c). Regulations govern the process by which PHMSA imposes civil penalties.
49 C.F.R. §§ 107.307–.331. The agency first must issue a notice of probable violation, and the
alleged offender may request an informal or formal hearing. Id. §§ 107.311, -.317, -.319. If the
agency sticks with the finding of a violation after this hearing, the offender may appeal to the
PHMSA’s administrator. Id. § 107.325(a)–(b). The administrator then issues the final agency
decision. See id. § 107.325(d).
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 17
Congress has granted jurisdiction to the circuit courts to review a “final action” of
PHMSA that imposes a civil penalty for a violation of Chapter 51:
Except as provided in section 20114(c), a person adversely affected or aggrieved
by a final action of the Secretary under this chapter may petition for review of the
final action in the United States Court of Appeals for the District of Columbia or
in the court of appeals for the United States for the circuit in which the person
resides or has its principal place of business. The petition must be filed not more
than 60 days after the Secretary’s action becomes final.
49 U.S.C. § 5127(a). This section goes on to make clear that the aggrieved party must seek
review exclusively through its procedure: “The court has exclusive jurisdiction, as provided in
subchapter II of chapter 5 of title 5, to affirm or set aside any part of the Secretary’s final action
and may order the Secretary to conduct further proceedings.” Id. § 5127(c).
According to Polyweave’s complaint in this case, PHMSA issued a notice of probable
violation to the company. Compl., R.1, PageID 13. Polyweave requested an informal hearing.
Id. PHMSA’s chief counsel found a violation and issued a fine. Id. In March 2021, Polyweave
filed an appeal within the agency, as permitted by 49 C.F.R. § 107.325. Id., PageID 14.
In October, PHMSA’s Chief Safety Officer rejected Polyweave’s appeal and upheld the fine.
See Polyweave Packaging, Inc., Docket No. PHMSA-2020-0079 (Oct. 18, 2021). (It is unclear
whether the administrator has properly delegated the duty to resolve appeals to this officer.
Cf. 49 U.S.C. § 108(e); 49 C.F.R. § 107.301.) Polyweave filed a different petition for review in
our court to challenge this “final action” under 49 U.S.C. § 5127(a). See Pet., R.1, No. 21-4202
(6th Cir.).
This suit does not challenge that final action. It instead concerns the Department of
Transportation’s evolving rulemaking. In December 2019, the Department placed procedural
guidelines in the Code of Federal Regulations (at Part 5 of Title 49) to make transparent the rules
that officers should follow when engaging in rulemakings, issuing guidance, or prosecuting
enforcement actions. See 84 Fed. Reg. 71,714 (Dec. 27, 2019) (codifying 49 C.F.R. §§ 5.1–
5.111). In Subpart D, the agency listed procedural protections for enforcement actions, including
that officers should disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).
See 49 C.F.R. § 5.83 (2020). But the regulations also made clear that they merely adopted rules
to “improve the internal management” of the Department and did not create rights “enforceable”
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 18
in court. Id. § 5.111. Following a change in administrations, the new Secretary removed these
“internal policies and procedures” from the Code of Federal Regulations in part on the ground
that the agency need not publish them there. 86 Fed. Reg. 17,292, 17,292–93 (Apr. 2, 2021).
In May 2021, while Polyweave’s internal agency appeal over the civil penalty remained
pending before PHMSA’s Chief Safety Officer, the company filed this separate action in district
court. The action challenged the Secretary’s decision to rescind the procedural guidance from
the Code of Federal Regulations. Polyweave sought injunctive and declaratory relief against the
rescission of Subpart D’s procedures, claiming that the Secretary’s recission had violated the
Administrative Procedure Act (APA) for various reasons. Compl., R.1, PageID 5, 10–19.
The district court dismissed Polyweave’s complaint. The court held that the complaint
failed to plausibly plead Polyweave’s Article III standing to challenge the removal of Subpart D.
Polyweave Packaging, Inc. v. Buttigieg, 2021 WL 4005616, at *3–10 (W.D. Ky. Sept. 2, 2021).
It did not, by contrast, view the judicial-review provision for challenging PHMSA’s “final
actions” (49 U.S.C. § 5127) as eliminating its subject-matter jurisdiction over this suit. Id. at
*10.
*
My colleagues hold that 49 U.S.C. § 5127 gives circuit courts exclusive jurisdiction not
just over a suit challenging PHMSA’s final action in an enforcement proceeding but also over a
suit that challenges other agency conduct that is “inescapably intertwined” with a PHMSA final
action. For two reasons, I would not take this route to the resolution of Polyweave’s suit.
First, this jurisdictional question implicates a circuit split that the Supreme Court will
soon resolve. The en banc Fifth Circuit recently addressed a similar issue involving a statute
(which mirrors § 5127) that grants circuit courts exclusive jurisdiction to review the SEC’s final
orders. See Cochran v. SEC, 20 F.4th 194, 198 (5th Cir. 2021) (en banc) (discussing 15 U.S.C.
§ 78y). The court held that this provision did not strip a district court of the jurisdiction to
entertain a constitutional challenge to the SEC’s structure brought by a private party subject to an
ongoing SEC proceeding. See id. at 199–212. The Ninth Circuit, by contrast, recently addressed
a similar issue involving a law granting circuit courts jurisdiction to review the FTC’s cease-and-
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 19
desist orders. See Axon Enter., Inc. v. FTC, 986 F.3d 1173, 1180 (9th Cir. 2021) (discussing 15
U.S.C. § 45(c)). The court held that this provision stripped a district court of the jurisdiction to
consider a constitutional challenge to the FTC’s structure and procedures brought by a private
party subject to an ongoing FTC proceeding. Id. at 1177–89. The Supreme Court granted
review in both cases. See SEC v. Cochran, 142 S. Ct. 2707 (2022); Axon Enter., Inc. v. FTC,
142 S. Ct. 895 (2022).
I do not see much daylight between these two cases and Polyweave’s case. Each one
involves a legal challenge to an agency’s general structure or procedures brought by a private
party who was then immersed in an agency proceeding. In none of the cases, however, had the
agency issued a final action in the party’s own proceeding. If the Supreme Court agrees with the
Ninth Circuit in Axon that the district court lacked subject-matter jurisdiction, it would go a long
way toward vindicating my colleagues’ reasoning here. If, by contrast, the Supreme Court
agrees with the Fifth Circuit in Cochran that the district court had subject-matter jurisdiction, it
would go a long way toward showing that they mistakenly find that the district court lacked
jurisdiction. Given the unsettled nature of the law on this significant legal question, I would opt
to avoid it.
Second, I tend to agree with the reasoning of the Fifth Circuit over the Ninth. If one
views this interpretive question through the Supreme Court’s modern textualist lens, the question
does not look particularly difficult. Cf. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617,
631–34 (2018). Just as nothing in the text of 15 U.S.C. § 78y strips district courts of jurisdiction
over a constitutional challenge to the SEC’s structure, see Cochran, 20 F.4th at 199–201, so too
nothing in the text of 49 U.S.C. § 5127 strips district courts of jurisdiction over a challenge to the
Secretary of Transportation’s rule rescinding Subpart D. The text gives circuit courts exclusive
jurisdiction only over “a final action of the Secretary under this chapter[.]” 49 U.S.C. § 5127(a),
(c). Yet Polyweave did not seek review of PHMSA’s “final action” imposing a civil penalty
under Chapter 51. Indeed, PHMSA did not issue that final action until months after Polyweave
sued. The company instead sought review of the Secretary’s general rulemaking. And while the
Secretary’s rescission of Subpart D qualified as “final,” the Secretary did not issue that general
change (which covered all areas subject to the Department of Transportation’s authority) “under”
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 20
the specific hazardous-materials chapter. The Secretary instead issued the change under his
general rulemaking power. See 86 Fed. Reg. at 17,294 (citing 49 U.S.C. § 322(a)); see also Nat’l
Ass’n of Mfrs., 138 S. Ct. at 629–30. So I do not see how § 5127 could be read to cover a suit
like this one.
To be sure, my colleagues rightly recognize that the caselaw in this area has not
traditionally focused on the text alone. Courts have developed two different common-law tests
to determine the reach of exclusive-review provisions like § 5127. On the one hand, many
decisions rely on City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958), to suggest that
an exclusive-review provision restricts review of other agency conduct that is “inescapably
intertwined” with the final action covered by the provision. See Mokdad v. Lynch, 804 F.3d 807,
812–13 (6th Cir. 2015); Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001) (Sotomayor,
J.); see also Ligon v. LaHood, 614 F.3d 150, 154–57 (5th Cir. 2010); Tur v. FAA, 104 F.3d 290,
292 (9th Cir. 1997).
On the other hand, the Supreme Court has since developed a broader test. In Thunder
Basin Coal Co. v. Reich, 510 U.S. 200 (1994), it identified three questions to consider when
deciding whether an exclusive-review provision covers a suit: Would preclusion of the challenge
“foreclose all meaningful judicial review”? Is the challenge “wholly collateral” to the agency
adjudication subject to the review provision? And is the challenge “outside the agency’s
expertise”? Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 489 (2010)
(quoting Thunder Basin, 510 U.S. at 212–13); see Elgin v. Dep’t of Treas., 567 U.S. 1, 15
(2012). Why do courts continue to rely on City of Tacoma’s inescapably intertwined test after
Thunder Basin? The answer is not obvious to me. That test addresses only the second Thunder
Basin factor: whether a suit is wholly collateral. See Bebo v. SEC, 799 F.3d 765, 773 & n.2 (7th
Cir. 2015); cf. Miriyeva v. U.S. Citizenship & Immigr. Servs., 9 F.4th 935, 941–42 (D.C. Cir.
2021).
In all events, the Supreme Court in recent years has sometimes confronted older
precedent that seemed to adopt a “functional” approach that decided how litigation should
progress based on what would best promote judicial efficiency. See Nat’l Ass’n of Mfrs., 138
S. Ct. at 631–34. The Court has refused to extend the logic of this precedent when it was
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 21
“completely unmoored from the statutory text.” Id. at 632. Because the Thunder Basin factors
strike me as potentially “unmoored” from the text in the same way, the Court may well reach the
same result in this area.
Even still, it is not clear to me that these factors justify the conclusion that § 5127 strips
the district court of jurisdiction over Polyweave’s APA claims. Admittedly, Polyweave could
likely receive judicial review of the Secretary’s rescission of Subpart D through its petition for
review of PHMSA’s final action imposing a civil penalty. See Elgin, 567 U.S. at 17, 19. But
what would have happened if Polyweave had won that proceeding? How could it get review of
an agency’s general rule in that scenario? Cf. Free Enter. Fund, 561 U.S. at 490. In addition,
Polyweave’s suit is “collateral” to PHMSA’s final action in the sense that Polyweave seeks only
an injunction to reinstate Subpart D—not an injunction that would do anything to PHMSA’s civil
penalty. Cf. id. Unlike suits that seek to require an agency to arrive at a specific position in a
specific adjudication, cf. Elgin, 567 U.S. at 22, the company challenges the legality of the
Department of Transportation’s general procedures, cf. Bowen v. Mich. Acad. of Fam.
Physicians, 476 U.S. 667, 675–76 (1986). Lastly, PHMSA does not have any particular
“expertise” in handling such “standard questions of administrative law” as whether the Secretary
should have gone through notice-and-comment rulemaking when rescinding Subpart D. Free
Enter. Fund, 561 U.S. at 491.
*
I would instead affirm the district court’s holding that Polyweave lacks standing to
challenge the rescission of Subpart D. The Constitution gives us jurisdiction only over “Cases”
or “Controversies.” U.S. Const. art. III, § 2. To establish a case or controversy, Polyweave
needed to prove its standing. At the pleading stage, this element required the company to
plausibly allege that it has suffered (or would likely suffer) an injury, that this injury traces to the
elimination of Subpart D, and that its requested relief would redress (or prevent) the injury. See
Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th 531, 536–37, 543–44 (6th Cir. 2021).
According to Polyweave, its complaint alleged that the Secretary’s rescission of
Subpart D caused four injuries. Polyweave argues that the rescission caused a constitutional
injury because (it says) parties have a due-process right to obtain exculpatory evidence in agency
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 22
proceedings under Brady. Appellant’s Br. 14–21. Even if Brady applies only in criminal
prosecutions, Polyweave next argues that the rescission took away its “substantive rights” that
Subpart D created. Id. at 21–26. Alternatively, Polyweave argues that it suffered an injury
because PHMSA denied it Brady materials in its own enforcement proceeding. Id. at 26–35.
Polyweave finally argues that it suffered a “pocketbook injury” because it had to pay its lawyers
to compel PHMSA to disclose those Brady materials. Id. at 35–37.
Each of these four standing theories falls short. The first two fail to allege a valid
Article III injury. The next two fail to satisfy Article III’s causation and redressability elements.
Theories One and Two. Polyweave’s first two standing theories flunk Article III’s injury
element. An Article III injury must be, among other things, particularized and concrete. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). The “particularized” element requires a
harm to affect a plaintiff in an individual way, not in the same way that it affects the public
generally. See Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560
n.1). This element thus bars parties from litigating “generalized grievances.” See Carney v.
Adams, 141 S. Ct. 493, 498–99 (2020); Gill v. Whitford, 138 S. Ct. 1916, 1929–30 (2018); Lance
v. Coffman, 549 U.S. 437, 439 (2007) (per curiam); Ex parte Lévitt, 302 U.S. 633, 633–34 (1937)
(per curiam). As perhaps the most common “generalized grievance,” plaintiffs routinely
challenge government action as illegal on the ground that it injured their interest in “the rule of
law”—an interest that they share with everyone else. In re Cap. Contracting Co., 924 F.3d 890,
898 (6th Cir. 2019) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 106 (1998)).
That type of injury does not suffice. See Lance, 549 U.S. at 441–42. Plaintiffs instead must
show that the action affected them specifically—because, for example, the government enforced
a challenged law against them. Cf. Trump v. Hawaii, 138 S. Ct. 2393, 2416 (2018); Davis v.
FEC, 554 U.S. 724, 733 (2008).
The “concrete” element, by comparison, requires that the plaintiff’s injury be “real”
rather than “abstract.” Spokeo, 578 U.S. at 340 (citation omitted). In recent years, the Supreme
Court has given this element new teeth. The Court has reaffirmed that Congress lacks unlimited
power to create a new “statutory right” and give the new right-holder a cause of action to sue
over the right’s violation. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205–07 (2021);
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 23
Spokeo, 578 U.S. at 341. Rather, a violation of the new right will create a concrete injury only if
the violation resembles an injury that could create a “case” as a historical matter. See
TransUnion, 141 S. Ct at 2204. Traditional injuries include, for example, tangible harms to
persons or property. See id. They also include some intangible harms, such as constitutional
harms to free speech. See id.
Here, Polyweave’s first two theories do not allege an Article III injury for the same
reason: the company does not identify a particularized injury. According to the first theory,
Polyweave suffered a constitutional injury because the rescission of Subpart D violated due
process. According to the second theory, Subpart D at least created new regulatory rights and
the rescission of these rights (allegedly in violation of the APA) injured Polyweave. Yet
Polyweave makes both arguments in the “abstract”—as if the Secretary’s mere issuance of the
rule automatically injured the company. Carney, 141 S. Ct. at 499. Not so. These two theories
allege “nothing more than an abstract and generalized harm to a citizen’s interest in the proper
application of the law[.]” Id. at 498. That is, they allege a classic generalized grievance. See id.
at 498–99. Yet when an agency issues a regulation that violates, say, the Free Speech Clause,
the entire population does not immediately suffer a speech injury that allows everyone to
challenge the regulation’s validity. Instead, a plaintiff like Polyweave must show that the
challenged action (like the elimination of Subpart D) affected the plaintiff in a personal way. Cf.
Davis v. Colerain Township, 2022 WL 4351074, at *4 (6th Cir. Sept. 20, 2022). For its first two
theories, Polyweave did not even attempt to make this showing.
With these theories, Polyweave instead focused only on the concrete-injury element.
It essentially claims that the government’s failure to disclose exculpatory evidence in agency
proceedings is a concrete injury because it qualifies as a “harm[] specified by the Constitution”
under Brady. TransUnion, 141 S. Ct. at 2204. Even if this harm did not rise to the constitutional
level, Polyweave adds, it is still concrete because a right to exculpatory evidence in agency
proceedings resembles Brady’s right and so “has a ‘close relationship’ to a harm ‘traditionally’
recognized as” sufficient. Id. (quoting Spokeo, 578 U.S. at 341). Yet I need not decide whether
these arguments suffice to allege a concrete injury. Plaintiffs must establish both concrete and
particularized injuries. See TransUnion, 141 S. Ct. at 2206 n.2 (citing Spokeo, 578 U.S. at 339–
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 24
40). And the Secretary’s rescission of Subpart D—by itself—did not injure Polyweave in a
personal way.
I add one final disclaimer about these two theories. On appeal, the parties spend pages
debating the merits of Polyweave’s claims. For the first theory, for example, they dispute
whether we should transplant Brady’s due-process rule from criminal prosecutions to agency
proceedings. The government argues that Polyweave lacks standing because courts have not
extended Brady in this way. Yet this debate is beside the point now because it “conflate[s] the
merits of [Polyweave’s Brady] claim with [Polyweave’s] standing to bring it.” CHKRS, LLC v.
City of Dublin, 984 F.3d 483, 489 (6th Cir. 2021). As long as Polyweave’s claim is not
frivolous, its standing to raise the claim does not depend on our agreement that Brady should
extend to agency proceedings. See id. Polyweave’s standing instead turns on whether it has
identified a concrete and particularized injury. Its first two theories fail because Polyweave does
not allege a particularized injury.
Theories Three and Four. Polyweave’s other theories attempt to rectify this particularity
problem by pointing to its own enforcement proceeding. But these theories suffer from distinct
causation and redressability problems. See Davis, 2022 WL 4351074, at *3. As for causation, a
plaintiff must plausibly plead that its injury is “fairly traceable” to the defendant’s conduct that it
challenges. California v. Texas, 141 S. Ct. 2104, 2113 (2021). So when a plaintiff challenges
one law, it cannot rely on an injury caused by another one. See Davis, 2022 WL 7199288, at *3.
As for redressability, a plaintiff must show that the relief that it requests would remedy the injury
that it alleged. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006). Damages can
remedy a past injury, but they do nothing to redress a future one. See Uzuegbunam v.
Preczewski, 141 S. Ct. 792, 798–802 (2021); City of Los Angeles v. Lyons, 461 U.S. 95, 105–10
(1983). Conversely, injunctive and declaratory relief can remedy a future injury, but they do
nothing to redress a past one. See Shelby Advocs. for Valid Elections v. Hargett, 947 F.3d 977,
981 (6th Cir. 2020) (per curiam); Frost v. Sioux City, 920 F.3d 1158, 1161–62 (8th Cir. 2019).
Polyweave’s third theory of injury flunks the causation element. Polyweave’s complaint
(if read charitably) alleged that PHMSA had been failing to disclose exculpatory evidence in its
own enforcement proceeding. This allegation may well plead an Article III injury, but I need not
No. 21-5929 Polyweave Packaging, Inc. v. Buttigieg Page 25
decide the issue. The complaint failed to plausibly plead that this injurious nondisclosure had
been “fairly traceable” to the Secretary’s rescission of Subpart D (rather than to, say, a rogue
employee or simple incompetence). California, 141 S. Ct. at 2113 (citation omitted). To begin
with, the Secretary’s rationale for the rescission did not suggest that he was doing away with the
agency’s policy of disclosing exculpatory evidence. Rather, he suggested that he rescinded the
regulations for a cosmetic reason: the Department need not codify internal processes in the Code
of Federal Regulations. See 86 Fed. Reg. at 17,293. In addition, the Brady regulation that
Polyweave now seeks to resuscitate existed while it litigated its own enforcement proceeding in
the first instance prior to appealing. So, according to Polyweave, PHMSA was failing to disclose
evidence even before the Secretary rescinded the Brady regulation and during the entire time that
this regulation required that disclosure. How could the Secretary’s later-in-time rescission have
caused the earlier lack of disclosure? The Latin phrase “post hoc ergo propter hoc” describes the
logical fallacy that a later event was caused by an earlier one simply because it came later. To
state a claim here, however, Polyweave must rely on an even more incredible logical leap: “ante
hoc ergo propter hoc.” Simply put, it is implausible to suggest that the Secretary’s rescission
caused any nondisclosure in Polyweave’s proceeding.
Polyweave’s fourth theory of injury flunks the redressability element. Polyweave’s
complaint alleged that it suffered “pocketbook” harms as a result of the rescission of Subpart D.
Polyweave allegedly had to pay its counsel to request that PHMSA disclose the exculpatory
evidence that the prior Brady regulation would have compelled the agency to disclose on its own.
Yet Polyweave sought only injunctive and declaratory relief against the rescission of Subpart D;
it did not seek damages. So this claimed monetary injury in the past does nothing to establish its
standing to seek the remedy that it wants now: an injunction and declaratory relief to redress a
future harm. See Lyons, 461 U.S. at 105–10; Shelby Advocs., 947 F.3d at 981.
For these reasons, I concur in the judgment.