United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2021 Decided August 12, 2022
No. 21-7014
ALTAGRACIA SANCHEZ, ET AL.,
APPELLANTS
v.
OFFICE OF THE STATE SUPERINTENDENT OF EDUCATION AND
DISTRICT OF COLUMBIA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00975)
Renée Flaherty argued the cause for appellants. With her
on the briefs was Robert J. McNamara.
Adam J. Tuetken, Assistant Attorney General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellees. On the brief were Karl A. Racine, Attorney
General, Loren L. AliKhan, Solicitor General, Caroline S. Van
Zile, Principal Deputy Solicitor General, Carl J. Schifferle,
Deputy Solicitor General, and Graham E. Phillips, Assistant
Attorney General.
2
Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
Concurring opinion filed by Senior Circuit Judge
RANDOLPH.
SRINIVASAN, Chief Judge: The District of Columbia’s
Office of the State Superintendent of Education regulates
childcare facilities, including by setting minimum
qualifications for their workers. In 2016, OSSE issued a rule
requiring many childcare workers to obtain an associate’s
degree or its equivalent in a field related to early-childhood
education. Two childcare workers and a parent filed this
lawsuit to challenge the new college requirements. They allege
violations of their substantive due process and equal protection
rights, as well as of the nondelegation doctrine.
The district court initially dismissed plaintiffs’ claims as
unripe and moot. In a prior appeal, we found the case
justiciable and reversed. On remand, the district court again
dismissed, this time on the merits. In rejecting plaintiffs’
substantive due process and equal protection claims, the court
concluded that the college requirements are rational, including
in the distinctions they draw between different classes of
daycare workers. And in rejecting plaintiffs’ nondelegation
doctrine claim, the court held that the statute granting
regulatory authority to OSSE bears an intelligible principle to
guide the agency’s work. We agree with the district court and
affirm its judgment.
3
I.
We explained the background of this case in our prior
opinion. Sanchez v. OSSE, 959 F.3d 1121, 1123–24 (D.C. Cir.
2020). We expand on that discussion here as relevant to the
present appeal. Because the district court resolved the case at
the motion-to-dismiss stage, we accept as true the facts pleaded
in plaintiffs’ complaint. Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1113 (D.C. Cir. 2000).
A.
The D.C. Council enacted the Child Development
Facilities Regulation Act of 1998 to modernize the city’s
licensing regime for childcare providers. See D.C. Law 12-
215, 46 D.C. Reg. 274 (Apr. 13, 1999) (codified as amended at
D.C. Code § 7-2031 et seq.). The Facilities Act applies to
“[c]hild development facilit[ies],” which it defines as any
“center, home, or other structure that provides care and other
services, supervision, and guidance for children, infants, and
toddlers on a regular basis, regardless of its designated name.”
D.C. Code § 7-2031(3). Rather than setting any specific
standards in the statute, the D.C. Council directed the mayor to
“promulgate all rules necessary” to establish “[m]inimum
standards of operation of a child development facility
concerning staff qualification, requirements and training,”
among other subjects. Id. § 7-2036(a)(1)(A). The mayor has
delegated that authority to OSSE. See Mayor’s Order 2009-
130, 56 D.C. Reg. 6883 (Aug. 21, 2009).
In 2016, OSSE issued new childcare regulations intended
to “ensure that care provided in a licensed Child Development
Facility is not only safe, but also supports children’s healthy
development and future academic achievement and success.”
63 D.C. Reg. 11,279, 11,279 (Sept. 9, 2016). Those regulations
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institute new minimum education requirements for certain
classes of childcare workers. Broadly speaking, the regulations
require many such workers to obtain an associate’s degree or
its equivalent in a field related to early-childhood education.
The specific requirements vary depending on where a
childcare provider works. First, the regulations cover
“expanded child development home[s],” which are private
residences where two or more caregivers are responsible for up
to twelve children. D.C. Mun. Regs. tit. 5-A, § 199.
Caregivers in those facilities must obtain at least an associate’s
degree “with a major in early childhood education, early
childhood development, child and family studies or a closely
related field.” Id. § 170.2(a)(1). The regulations also apply to
teachers in “child development centers,” which are childcare
facilities serving more than twelve children outside the
operator’s home. Id. § 199. Teachers in those centers may
comply with the regulations in either of two ways. Like
expanded-home daycare workers, they may obtain an
associate’s degree in an early-childhood field. Id. § 165.1(a).
If they already have a college degree in another field, they may
instead complete at least twenty-four credit hours in subjects
related to early-childhood education. Id. § 165.1(b).
Facilities may seek two types of waivers from the new
college requirements. First, OSSE may grant experience
waivers to qualified teachers who had worked in the same
position continuously for the ten years preceding the
rulemaking (from 2006 to 2016). Id. § 165.4. Second, OSSE
may grant hardship waivers if the “demonstrated immediate
economic impact or hardship on the [f]acility or staff member
is sufficiently great to make immediate compliance impractical
despite diligent efforts,” so long as the facility or staff member
meets or exceeds “the intent of the regulation for which the
waiver is requested” and the welfare of children is not
5
jeopardized. Id. § 106.1. The decision whether to grant a
waiver is committed to OSSE’s discretion. Id. §§ 106.5, 165.4.
B.
Plaintiff Altagracia Sanchez immigrated to the United
States from the Dominican Republic and provides daycare
services in her home. Sanchez employs two assistant
caregivers and is licensed to care for up to nine children. She
has a law degree from a university in the Dominican Republic
but has not attended college in this country. Under the
regulations, she is classified as an “expanded home caregiver,”
so she must obtain an associate’s degree in an early-childhood
field. Id. § 170.2(a)(1).
Plaintiff Dale Sorcher is a teacher at a preschool. The
preschool serves children ages zero to three and is licensed as
a “child development center.” Sorcher has three college
degrees, but none of them is in an early-childhood field. To
comply with the regulations, then, she must either obtain a
degree in an early-childhood field or complete twenty-four
credit hours in subjects related to early-childhood education.
Id. § 165.1(a)–(b).
Sanchez and Sorcher, along with Jill Homan, a parent with
two children in daycare, filed this lawsuit against OSSE to
challenge the college requirements. They allege that the
regulations infringe their substantive due process and equal
protection rights and also violate the nondelegation doctrine.
Sanchez and Sorcher argue that they can effectively care for
children without going back to school, such that taking
expensive college classes would serve no purpose. Enrolling
in an associate’s degree program would be especially difficult
for Sanchez, given her limited English proficiency and the
competing time demands of running her small business.
6
Homan posits that the college requirements will increase the
costs of daycare while forcing some of her children’s favorite
teachers either to provide worse care while going back to
school part-time or to quit their jobs entirely because they lack
the time and money required to earn an associate’s degree.
The district court initially dismissed plaintiffs’ suit on
threshold justiciability grounds, but we reversed and remanded
for the court to consider the merits of plaintiffs’ challenges.
Sanchez, 959 F.3d at 1124–26. On remand, OSSE moved to
dismiss plaintiffs’ claims on the merits. The district court
granted the motion in a thoroughly reasoned opinion. Sanchez
v. OSSE, 513 F. Supp. 3d 101 (D.D.C. 2021).
The court held that plaintiffs had failed to state a viable
claim on any of their three legal theories. As to plaintiffs’ due
process and equal protection claims, the court concluded that
the regulations were subject to only rational-basis review and
met that forgiving standard. Id. at 111–16. And as for
plaintiffs’ claim under the nondelegation doctrine, the court
held that the Facilities Act satisfied the doctrine by adequately
guiding OSSE’s regulatory discretion. Id. at 108–11. Plaintiffs
now bring this second appeal.
II.
We review the district court’s dismissal of the complaint
de novo. W. Org. of Res. Councils v. Zinke, 892 F.3d 1234,
1240 (D.C. Cir. 2018).
A.
We first consider plaintiffs’ due process and equal
protection claims. Before addressing whether OSSE had a
rational basis for issuing the challenged regulations for
7
purposes of both of those claims, we first resolve a dispute
about the applicable legal standard.
1.
The parties agree that plaintiffs’ due process and equal
protection claims are subject to rational-basis review.
Plaintiffs first contend the college requirements “do[]
absolutely nothing” to further any legitimate government
interest, in violation of substantive due process. Sanchez Br.
40. Because the challenged requirements implicate no
fundamental rights, they are reviewed only for a rational basis.
Heller v. Doe, 509 U.S. 312, 319–20 (1993); Abigail All. for
Better Access to Developmental Drugs v. von Eschenbach, 495
F.3d 695, 712 (D.C. Cir. 2007) (en banc). Plaintiffs further
allege that the college requirements draw irrational distinctions
between different classes of childcare workers, in violation of
their rights to equal protection. Because the challenged
classifications “neither proceed[] along suspect lines nor
infringe[] fundamental constitutional rights,” their equal
protection claim is also subject to rational-basis review. FCC
v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
Although the parties agree that rational-basis review
governs the resolution of the substantive due process and equal
protection claims, they disagree about what that standard
requires at the pleading stage. Plaintiffs identify a supposed
tension between the procedural standard applicable to motions
to dismiss and the substantive standard applicable to rational-
basis challenges. But the ostensible tension, on examination,
is illusory.
In evaluating a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), a court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Ashcroft v.
8
Iqbal, 556 U.S. 662, 675 (2009). The court then determines
whether the plaintiff has pleaded those elements with adequate
factual support to “state a claim to relief that is plausible on its
face.” Id. at 678 (citation omitted); see also Blue v. District of
Columbia, 811 F.3d 14, 20 (D.C. Cir. 2015). A claim is facially
plausible when the complaint contains “factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. In assessing the sufficiency of the pleadings, the court
must accept the plaintiff’s factual allegations as true and draw
all reasonable inferences in the plaintiff’s favor. LaRoque v.
Holder, 650 F.3d 777, 785 (D.C. Cir. 2011).
To succeed on a rational-basis challenge, a plaintiff must
meet a demanding standard. Rational-basis review affords the
policy choices of the political branches “a strong presumption
of validity.” Beach, 508 U.S. at 314–15 (citing Lyng v. Auto.
Workers, 485 U.S. 360, 370 (1988)). Judicial intervention
under that standard “is generally unwarranted no matter how
unwisely . . . a political branch has acted.” Id. at 314 (quoting
Vance v. Bradley, 440 U.S. 93, 97 (1979)). A social or
economic policy that “neither proceeds along suspect lines nor
infringes fundamental constitutional rights” must be upheld “if
there is any reasonably conceivable state of facts that could
provide a rational basis” for the legislative choice. Id. at 313.
And because legislative bodies are under no constitutional
obligation to explain their reasons for enacting a policy, “it is
entirely irrelevant for constitutional purposes whether the
conceived reason for the challenged distinction actually
motivated the legislature.” Id. at 315. A plaintiff bringing a
constitutional challenge to a regulation on rationality grounds
thus faces the unenviable task of refuting “every conceivable
basis which might support it.” Id. (quoting Lehnhausen v. Lake
Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).
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Plaintiffs contend that the rational-basis standard, in
asking a court to consider whether any reasonably conceivable
state of facts supports a challenged policy, is incompatible with
the motion-to-dismiss standard, which requires a court to
accept as true the state of facts presented in the complaint.
There is no incompatibility between those standards. It is true,
as plaintiffs observe, that the “rational basis standard . . .
cannot defeat the plaintiff’s benefit of the broad Rule 12(b)(6)
standard.” Wroblewski v. City of Washburn, 965 F.2d 452, 459
(7th Cir. 1992). But to survive a motion to dismiss, plaintiffs
bringing rational-basis challenges still must plausibly plead
facts supporting the elements of their claims, like plaintiffs
must do in any case.
When rational-basis review applies, a plaintiff at the
summary-judgment stage or at trial will ultimately “bear[] the
burden of showing that the statute is not a rational means of
advancing a legitimate government purpose.” Hettinga v.
United States, 677 F.3d 471, 478–79 (D.C. Cir. 2012) (per
curiam). At the motion-to-dismiss stage, then, the plaintiff
must plausibly allege facts showing that no reasonably
conceivable state of facts could provide a rational basis for the
challenged policy. Id. at 479; see Beach, 508 U.S. at 313.
Plaintiffs suggest that it would be all but impossible for a
complaint to contain allegations that “negative every
conceivable basis” for a challenged policy. Beach, 508 U.S. at
315 (citation omitted). In practice, however, pleading facts
plausibly showing a challenged policy’s irrationality will
adequately negate any rational explanation for the policy so as
to survive a motion to dismiss, without the complaint’s needing
to refute a laundry list of potential justifications. That is a tall
task, but not an impossible one.
In sum, plaintiffs here were required to plausibly allege the
elements of their claims, just like plaintiffs in any other case.
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In the context of rational-basis review, that means plausibly
alleging that no conceivable set of facts could support the
challenged policy. Having clarified the standard, we can now
apply it to plaintiffs’ due process and equal protection claims.
2.
Plaintiffs first contend that the college requirements “do[]
absolutely nothing to further” any legitimate government
interest, in violation of substantive due process. Sanchez Br.
40. The district court held that OSSE could have rationally
theorized that “more early childhood education for childcare
providers will lead to better childcare.” Sanchez, 513 F. Supp.
3d at 112. On appeal, plaintiffs concede both that occupational
licensing regimes can properly incorporate minimum
education requirements and that OSSE has an interest in
promoting the educational growth of young children. But they
challenge the fit between OSSE’s means and its ends. They
argue that an associate’s degree in early-childhood education
has nothing to do with the job of caring for young children.
Plaintiffs’ argument that degrees in early-childhood
education are irrelevant to education in early childhood is a
contradiction in terms, and their position is undermined by the
factual allegations in their own complaint. The complaint
surveys colleges in the Washington, D.C., area that offer
associate’s degrees in early-childhood education. According
to plaintiffs, those programs require students to complete
roughly sixty credit hours. As in virtually all college programs,
those credit hours are split between courses within the early-
childhood major and courses in other subjects. The local
schools listed in the complaint require between fifteen and
thirty-six credit hours of early-childhood courses within the
major, with the remainder of the curriculum composed of
required general-education courses and elective courses.
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Plaintiffs contend that at least some of the elective courses
offered at local colleges, such as classes on fencing or
Shakespeare, would be irrelevant to the work of a daycare
teacher. And they point out that early-childhood courses cover
ages zero to eight, while the District’s childcare regulations
cover only ages zero to three. But under rational-basis review,
OSSE could reasonably conclude that the coursework required
to earn an associate’s degree in early-childhood education
would be, generally speaking, relevant to the work of childcare
providers. It’s possible that certain schools might have some
idiosyncratic course requirements. Even so, OSSE could
rationally issue the challenged regulations without needing to
parse the curriculum of any particular school.
Caregivers, moreover, can comply by completing the
required education at any accredited college in the United
States, affording them plenty of flexibility to choose a program
that matches their career goals. And within a given school,
even if some elective courses might have limited relevance to
aspiring childcare workers, nothing would prevent students
from tailoring their course selections to their career interest in
caring for younger children. A variety of courses outside the
early-childhood major, from math and English to art and
history, could be beneficial to someone tasked with the
educational development of toddlers—as any adult who has
been flummoxed by a two-year-old repeatedly asking “why”
can attest.
Even if all associate’s degree programs contain at least
some irrelevant content, OSSE still could have rationally
concluded that requiring childcare workers to complete a
predominantly relevant course of study will improve the
quality of care young children receive. Under rational-basis
review, OSSE had discretion to impose a requirement that is
12
“not . . . in every respect logically consistent with its aims,” so
long as it identified “an evil at hand for correction” and
established “a rational way to correct it.” Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 487–88 (1955). That
standard is met here.
Plaintiffs seek to undermine that conclusion by invoking a
smattering of out-of-circuit decisions holding that professional
licensing regimes fail rational-basis review if they impose
onerous training requirements that are irrelevant to the work
actually done in a given field. See, e.g., St. Joseph Abbey v.
Castille, 712 F.3d 215 (5th Cir. 2013) (funeral-director
licensing as applied to casket retailers); Clayton v. Steinagel,
885 F. Supp. 2d 1212 (D. Utah 2012) (cosmetology licensing
as applied to African-style hair braiders); Patel v. Tex. Dep’t of
Licensing & Regul., 469 S.W.3d 69 (Tex. 2015) (esthetician
licensing as applied to eyebrow threaders). But this case
involves no such mismatch between the content of the required
training and the duties performed by the covered workers.
Even assuming it is irrational to force a hair braider who never
dyes hair to sit through a week of training on how to safely use
hair dye, see Steinagel, 885 F. Supp. 2d at 1214–15, an
associate’s degree in early-childhood education is self-
evidently (and rationally) connected to the work of caring for
young children.
Under rational-basis review, the policy choices of the
political branches are “not subject to courtroom fact-finding
and may be based on rational speculation unsupported by
evidence or empirical data.” Beach, 508 U.S. at 315. And here,
at any rate, as plaintiffs acknowledge in their complaint, OSSE
issued its regulations in part based on a report from the
National Academies recommending a bachelor’s degree
requirement for all educators of children ages zero to eight. See
Transforming the Workforce for Children Birth Through Age
13
8: A Unifying Foundation, Inst. of Med. & Nat’l Rsch. Council
(LaRue Allen & Bridget B. Kelly eds., 2015). The report
sought to equalize the educational requirements for daycare
workers and elementary school teachers, given that “the work
of lead educators for young children of all ages is based on the
same high level of sophisticated knowledge and
competencies.” Id. at 7; see also id. at 513. In light of that
expert guidance, OSSE could have rationally concluded that its
college requirements would improve the quality of childcare
provided in licensed facilities.
Although we are sensitive to the burdens that OSSE’s
regulations impose on daycare workers, our role is not to assess
the wisdom of the agency’s policy choices. A conceivably
rational justification for the college requirements is readily
apparent, and, in this context, that is all due process requires.
3.
Plaintiffs also contend that the college requirements are
“riddled with arbitrary distinctions among child-care
providers” in violation of their equal protection rights. Sanchez
Br. 35. “Where rationality is the test, a State does not violate
the Equal Protection Clause merely because the classifications
made by its laws are imperfect.” Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 84 (2000) (alteration, quotation marks, and
citation omitted). Defining the class of people subject to a
regulatory requirement “inevitably requires that some persons
who have an almost equally strong claim to favored treatment
be placed on different sides of the line.” Beach, 508 U.S. at
315–16 (quotation marks and citation omitted). And in
drawing those lines, a regulation “may select one phase of one
field and apply a remedy there, neglecting the others.” Lee
Optical, 348 U.S. at 489. Equal protection “does not require
that a State must choose between attacking every aspect of a
14
problem or not attacking the problem at all.” Dandridge v.
Williams, 397 U.S. 471, 486–87 (1970). Rather, a regulation
must only “be rationally based and free from invidious
discrimination” to survive judicial review. Id. at 487.
Plaintiffs challenge three distinctions that the regulations
draw between classes of childcare workers. All three are
rational.
First, the regulations require childcare workers with no
college education to complete an associate’s degree with an
early-childhood major. But they permit teachers in child
development centers who already have college degrees in other
fields to instead take twenty-four credit hours of early-
childhood classes. Plaintiffs point out that some associate’s
degree programs in early-childhood education require fewer
than twenty-four credit hours within that major. They thus
argue that Sorcher, who has three college degrees, should not
have to complete “more early-childhood coursework than
another person with the same job who has no college education
at all.” Sanchez Br. 36.
While some local colleges require fewer than twenty-four
credit hours of early-childhood classes for an associate’s
degree in that field, other colleges require more. For instance,
according to plaintiffs’ complaint, the University of the District
of Columbia requires thirty-six credit hours of early-childhood
classes for an associate’s degree in infant and toddler
education. And that is in addition to the general-education and
elective courses needed to complete an associate’s degree.
OSSE could have rationally concluded that a degree in another
field plus twenty-four credit hours of early childhood classes
forms the rough equivalent of an associate’s degree in early-
childhood education, which requires sixty total credit hours,
between fifteen and thirty-six of which are in early childhood
15
courses. As the district court correctly observed, twenty-four
was a “rational, while perhaps rough” estimate of the number
of early-childhood credit hours required for a degree in that
field. Sanchez, 513 F. Supp. 3d at 115.
In any event, plaintiffs misperceive the nature of the
education requirements. Rather than treating similarly situated
teachers differently, the regulations simply open two avenues
for compliance, which are equally open to all teachers in child
development centers. Teachers can either earn an associate’s
degree in early-childhood education or earn a degree in another
field and then take twenty-four credit hours of early-childhood
classes. The choice is entirely up to them. If Sorcher would
find it less burdensome to obtain an associate’s degree in early-
childhood education than to take twenty-four credit hours of
classes, she has the option to comply with the regulations by
completing a full early-childhood degree.
Second, the regulations apply to extended-home
caregivers like Sanchez, but not to nannies, babysitters, or
parents who lead neighborhood play groups. Plaintiffs argue
that childcare providers do the same job “wherever they happen
to work,” so OSSE cannot rationally subject caregivers in
different settings to different requirements. Sanchez Br. 38.
As a threshold matter, it is the Facilities Act, rather than
the OSSE regulations, that exempts babysitters and
neighborhood play groups. D.C. Code § 7-2033. OSSE thus
lacked statutory authority to regulate those less formal care
arrangements. And plaintiffs’ complaint does not challenge the
exemptions in the Facilities Act.
Regardless, rational justifications for the challenged
exemptions are apparent. Nannies and babysitters typically
work for a single family within the home, and OSSE could have
16
rationally decided to respect parents’ autonomy to hire
childcare providers without college degrees to work in their
homes. The case for exempting parent-led play groups is even
more evident: any attempt by OSSE to require parents to
obtain associate’s degrees in early-childhood education before
supervising their kids’ friends would raise significant
questions. Plaintiffs make no effort in their complaint to
explain why it is irrational to treat a professional caregiver in a
daycare setting differently than a weekend babysitter or a
parent supervising a play group.
Third, and lastly, the regulations apply to the preschool
where Sorcher teaches, which is connected to a synagogue that
offers after-school programming to elementary and high school
students. But the regulations exempt daycares and preschools
connected to full-time elementary and high schools. Once
again, plaintiffs argue that those caregivers do the same work
and cannot rationally be treated differently. And once again,
plaintiffs do little in their complaint to explain why the
differential treatment is irrational. A rational explanation for
the regulatory distinction is plainly apparent. OSSE could have
rationally concluded that daycares attached to full-time schools
would be more likely to have qualified teachers. And full-time
schools are subject to their own comprehensive regulatory
scheme, which includes minimum qualifications for teachers.
See D.C. Mun. Regs. tit. 5-A, § 1601. OSSE properly
prioritized “one phase of one field and appl[ied] a remedy
there.” Lee Optical, 348 U.S. at 489.
The distinctions that the regulations draw between classes
of childcare workers are rational.
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B.
Plaintiffs allege that the Facilities Act violates the
nondelegation doctrine by granting OSSE unconstrained
authority to set licensing standards for daycares. We hold that
plaintiffs have failed to state a plausible nondelegation claim.
Before addressing whether the Facilities Act satisfies the
nondelegation doctrine, we first consider whether the
nondelegation doctrine even applies to the District’s
government. In their complaint, plaintiffs present their
nondelegation claim under both the Constitution and the D.C.
Home Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973)
(codified as amended at D.C. Code § 1-201.01 et seq.).
OSSE argues that plaintiffs’ nondelegation claim “has no
footing in the Constitution.” The constitutional nondelegation
doctrine derives from the federal separation of powers. Article
I vests “[a]ll legislative Powers” in Congress. U.S. Const. art.
I, § 1. Because that authority is exclusive, the nondelegation
doctrine “bars Congress from transferring its legislative power
to another branch of Government.” Gundy v. United States,
139 S. Ct. 2116, 2121 (2019) (plurality opinion). Here, OSSE
points out that the D.C. Council, not Congress, enacted the
Facilities Act. OSSE contends that the federal separation of
powers imposes no limits on the authority of the D.C. Council
to delegate power to OSSE.
Perhaps recognizing the force of the OSSE’s argument in
that regard, plaintiffs contend in the alternative that the
nondelegation doctrine applies to the District through the
Home Rule Act, a proposition OSSE does not appear to contest
in this case. Congress wields plenary power over the nation’s
capital, including power to create a local government for the
District. U.S. Const. art I, § 8, cl. 17; District of Columbia v.
18
John R. Thompson Co., 346 U.S. 100, 109 (1953); Metro. R.R.
Co. v. District of Columbia, 132 U.S. 1, 9 (1889). In designing
that government, Congress presumably could vest legislative
authority in any local body of its choosing. But through the
Home Rule Act, Congress decided to give the District’s
government a tripartite structure modeled on that of the federal
government, with legislative power vested in the D.C. Council,
executive power in the mayor, and judicial power in the D.C.
Superior Court and Court of Appeals. See D.C. Code §§ 1-
204.04(a); 1-204.22; 1-204.31(a).
The D.C. Court of Appeals has observed that the
separation of powers within the District’s government suggests
that “the same general principles should govern the exercise of
such power in the District Charter as are applicable to the three
branches of government at the federal level.” Wilson v. Kelly,
615 A.2d 229, 231 (D.C. 1992). There is thus “good reason to
think the nondelegation doctrine applies to the District’s
government.” Unum Life Ins. Co. of Am. v. District of
Columbia, 238 A.3d 222, 232 (D.C. 2020).
Ultimately, though, we need not decide whether the
nondelegation doctrine applies to the District, either through
the Constitution or the Home Rule Act. Instead, following the
lead of the D.C. Court of Appeals, id., we will assume without
deciding that the doctrine applies. We may do so because we
conclude that, even if the doctrine applies, it is satisfied here.
The nondelegation doctrine requires a legislature
delegating authority to “lay down by legislative act an
intelligible principle to which the person or body authorized to
act is directed to conform.” Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 472 (2001) (alteration, quotation marks, and
citation omitted). The legislature must make clear the “general
policy” to be pursued and “the boundaries of this delegated
19
authority.” Am. Power & Light Co. v. SEC, 329 U.S. 90, 105
(1946).
The amount of guidance the legislature must provide
“varies according to the scope of the power congressionally
conferred.” Whitman, 531 U.S. at 475. For instance, Congress
must give “substantial guidance” to the Environmental
Protection Agency to channel its setting of “air standards that
affect the entire national economy,” but “need not provide any
direction” at all to that agency for defining the statutory term
“country elevators.” Id.
In applying the nondelegation doctrine, the Supreme Court
“has been driven by a practical understanding that in our
increasingly complex society, replete with ever changing and
more technical problems, Congress”—and, by analogy, the
D.C. Council—“simply cannot do its job absent an ability to
delegate power under broad general directives.” Mistretta v.
United States, 488 U.S. 361, 372 (1989). The governing
standards for a permissible delegation are “not demanding,”
and the Supreme Court has “over and over upheld even very
broad delegations.” Gundy, 139 S. Ct. at 2129 (plurality
opinion); cf. id. at 2131 (Alito, J., concurring in the judgment)
(“If a majority of this Court were willing to reconsider the
approach we have taken for the past 84 years, I would support
that effort.”); id. at 2131–48 (Gorsuch, J., dissenting).
Under the current standard, the Facilities Act sets forth an
intelligible principle to guide OSSE’s regulation of daycares.
The Act directs OSSE to issue “[m]inimum standards of
operation of a child development facility concerning staff
qualification, requirements and training.” D.C. Code § 7-
2036(a)(1)(A). That provision directs OSSE’s regulatory
authority to a particular subject matter (minimum staff
qualifications and training) in a particular industry (childcare).
20
Within that narrow sphere, the D.C. Council can delegate
considerable discretion. See Detroit Int’l Bridge Co. v. Gov’t
of Can., 883 F.3d 895, 902–03 (D.C. Cir. 2018); TOMAC v.
Norton, 433 F.3d 852, 867 (D.C. Cir. 2006).
The Facilities Act’s definitions section provides further
direction. Under the statute, a “[c]hild development facility” is
any “center, home, or other structure that provides care and
other services, supervision, and guidance for children, infants,
and toddlers on a regular basis.” D.C. Code § 7-2031(3). The
implication of the Act, read as a whole, is that the minimum
qualifications should relate to the care, supervision, and
guidance of children. In short, the Facilities Act supplies the
intelligible principle that OSSE must set minimum
qualifications for daycare workers to ensure their fitness to take
care of small children.
As OSSE points out, the United States Code contains
many comparable delegations. For example, the
Transportation Security Administration sets “minimum
training requirements” and “minimum education levels” for
“air carrier personnel.” 49 U.S.C. § 44935(a). The Secretary
of the Treasury establishes “minimum education and
experience requirements” for certain tax appraisers. 26 U.S.C.
§ 170(f)(11)(E)(ii)(I). And the Secretary of Health and Human
Services sets “training, education, and experience
requirements” for certain physician assistants and nurse
practitioners. 42 U.S.C. § 1395x(aa)(5)(A). Delegations of
authority to set minimum job qualifications are thus
commonplace. We decline plaintiffs’ invitation to call into
question such a ubiquitous type of delegation.
In the alternative, plaintiffs contend that, even if the
Facilities Act includes an intelligible principle, any guidance
the statute provides is merely “hortatory” because OSSE’s
21
rulemaking was not subject to judicial review under the
District’s version of the Administrative Procedure Act.
Sanchez Br. 49–50. In plaintiffs’ view, an intelligible principle
serves no purpose unless a court can police the agency’s
compliance with the legislative command.
That argument is doubly flawed. First, it appears that
OSSE’s rulemaking would have been reviewable in D.C.
Superior Court. True enough, the D.C. Administrative
Procedure Act provides for judicial review of agency actions
only in “contested case[s],” a term the D.C. Court of Appeals
has interpreted as covering only formal adjudications. D.C.
Code § 2-510; District of Columbia v. Sierra Club, 670 A.2d
354, 359 (D.C. 1996). But despite that statutory lacuna, the
District’s courts have permitted equitable actions challenging
rulemakings. See id.; see also Dupont Circle Citizen’s Ass’n v.
D.C. Zoning Comm’n, 343 A.2d 296, 309–10 & n.26 (D.C.
1975) (Gallagher, J., concurring).
Second, even if the college requirement were
unreviewable for compliance with the Facilities Act, that
would be irrelevant to the analysis under our precedent. We
have held that, even when judicial review is unavailable, the
nondelegation doctrine is satisfied so long as a statute provides
an intelligible principle to guide an agency’s exercise of
discretion. Mich. Gambling Opposition v. Kempthorne, 525
F.3d 23, 33 n.8 (D.C. Cir. 2008). The Facilities Act does so
and thus complies with the nondelegation doctrine, assuming
the doctrine applies to the District.
22
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.
RANDOLPH, Senior Circuit Judge, concurring: Though not
necessarily central to this case, the Supreme Court’s
nondelegation jurisprudence appears to be in a state of flux.
See Joseph Postell & Randolph J. May, The Myth of the State
Nondelegation Doctrines, 74 ADMIN. L. REV. 263, 264–65
(2022). Of course, we are bound to apply the Supreme Court’s
current precedent, since only the Supreme Court enjoys “the
prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484
(1989). Because the majority evaluates the nondelegation
claims presented here under current doctrine, I join its analysis.