Welcome back to Ninth Circuit Review-Reviewed, your periodic recap of administrative law before arguably “the second most important court in the land.” Since my last post in late 2024, the Ninth Circuit published several significant decisions involving agency adjudications. These cases—and their doctrinal implications—are discussed below. Panel Applies Decker Coal Doctrine in Denying ‘Double Tenure’ […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month, we tackle Nebraska v. Su, in which a split three-judge panel sided with the challengers against President Biden’s $15 minimum wage mandate for federal contractors. Besides engendering a direct circuit split, […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Every month, in preparation for these posts, I review the Ninth Circuit’s published opinions. But when I went over last month’s opinions for this post, I found slim pickings. Thus stymied, I turned […]
In mid-July, a divided Ninth Circuit panel rendered the Federal Vacancies Reform Act (FVRA) a “near dead letter,” to quote from Judge Morgan Christen’s dissent. Before we get to the majority’s decision, let’s start with the backstory. The Constitution, of course, requires high-level officers to be appointed by the President with the “advice and consent” […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before (arguably) the “second most important court in the land.” Let’s get straight to business. FCIC Reaps Kisor Deference Congress created the Federal Crop Insurance Corporation “to improv[e] the economic stability of agriculture.” The FCIC carries out this mandate by offering reinsurance to […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” After a three-year hiatus, we’re back! Let’s get straight to business. Each of the following statements is from a different opinion by Judge Lawrence VanDyke in the same controversy: Over the last 10 […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Panel Nixes Rail Reg over Agency Pretext The biggest development last month was the Ninth Circuit’s inaugural application of *pretextual review* as established by the Supreme Court in […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. FTC Gets Yellow Card over Post-Lucia Constitutional Concerns After Free Enterprise Fund and Lucia, the constitutionality of independent agency adjudications became an open question. This legal uncertainty, in turn, engendered a spate of original actions […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Preliminary Panels: Politics by Other Means? In normal times, injunctive relief is an “extraordinary remedy.” Over the last four years, by contrast, such relief became routine in the Ninth Circuit. While […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of arguably “the second most important court in the land.” Today’s post marks the second anniversary of this series. Let’s get straight to business. CA9’s En Banc Process Is Broken . . . A major purpose of en banc proceedings is to bring uniformity to appellate law. It is somewhat ironic, therefore, that the Ninth […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. When Trump Is Gone, Will CA9 Start Abnegating? If you’re an anti-administrativist, it’s been a great four years in CA9. During the Trump-era, the Ninth Circuit filled the Federal Reporter with orders […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Last month, I was off studying for the bar, which I ultimately didn’t take because I exercised an 11th hour diploma privilege. Let’s get straight to business. Census Case, Part 1: Final Agency Action? Department of Commerce v. […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Border Wall Panel Makes Doctrinal Hash of APA Review One of the 1946 APA’s achievements was to simplify suits against the government. To this end, the Act provides a waiver of […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. CA9 Chooses Wrong Controversy to Grow Judicial Review of President’s Statutory Powers Courts must set aside agency action that is unreasonable. But when reviewing the president’s statutory powers, courts don’t check […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. April Was the Cruelest Month (for Law’s Abnegation) Does law’s arc bend steadily toward deference? Or does law invariably bend the knee to value preferences? These questions animate this section. In late […]