Monday, March 13, 2023

Appellant Apple scores partial victory

The outcome:

We affirm in part and reverse in part. We affirm the unreviewability dismissal of plaintiffs’ challenges to the instructions as being contrary to statute and arbitrary and capricious. No constitutional challenges are presented. But we reverse the unreviewability dismissal of plaintiffs’ challenge to the instructions as having been improperly issued because they had to be, but were not, promulgated through notice-and-comment rulemaking under 5 U.S.C. § 553. That challenge, we also hold, at least Apple had standing to present. We remand for further proceedings on the lone surviving challenge. Like the district court, we do not reach the merits of that challenge.

Of note

We then address the remaining challenge (concerning the absence of notice-and-comment rulemaking). We hold that neither § 701(a)(1) nor § 701(a)(2) bars review of the third challenge and that at least Apple has standing to press it. We therefore reverse the dismissal as to the third challenge and remand


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