Notice & Comment

D.C. Circuit Review – Reviewed: A Bad Week for the D.C. Circuit

Last week was a bad one for the DDC. Well, this week was a bad one for the D.C. Circuit. In Seila Law v. CFPB, the Supreme Court rejected the en banc D.C. Circuit’s decision in PHH Corp. v. CFPB.

Familiarity with PHH Corp. and Seila Law will be assumed for this week’s post. (If you need a refresher, here is my summary of PHH Corp., my summary of the Ninth Circuit’s decision in Seila Law, and Amy Howe’s summary of the Supreme Court’s decision in Seila Law). While reading Seila Law, I was curious what the Supreme Court would say about PHH Corp. It wasn’t a lot.

First, there was this discussion in the Chief Justice’s majority opinion:

The Chief Justice then cited PHH Corp. two mores times — both to dissenting opinions:

Finally, Justice Thomas, in his concurrence, also cited then-Judge Kavanaugh’s dissent in PHH Corp.:

And so ends the saga of PHH Corp.*

On the subject of en banc rehearing, the most important decision this week in the D.C. Circuit is Allegheny Defense Project v. FERC. I’ve addressed this case before. Here, however, is the gist. If you want to build a natural gas pipeline, you need a certificate from the Federal Energy Regulatory Commission. If you have this certificate, you can exercise eminent domain. Unsurprisingly, folks aren’t always happy when you take their property. They often want to challenge the decision. To do so, however, landowners must go to FERC to seek rehearing. The Natural Gas Act states that if FERC fails to act on a party’s rehearing petition within thirty days, the petition is deemed denied and the person may seek judicial review. FERC, however, issues tolling orders that extend the thirty-day window. These orders are final enough to allow construction but not final enough to allow judicial review (making them, in Judge Millett’s words, “akin to Schrödinger’s cat: both final and not final at the same time”).

Per Judge Millett, the D.C. Circuit no longer blesses such tolling orders. Her (punchy) opinion explains why Chevron doesn’t apply (“Federal agencies do not administer and have no relevant expertise in enforcing the boundaries of the courts’ jurisdiction”) and, in any event, why FERC’s interpretation is wrong (“The question is not one of labels, but of signification: Did the Tolling Order amount to a ‘grant’ of rehearing within the meaning of the statute, or instead amount only to inaction on the application, which would trigger the possibility of judicial review as a deemed denial. The Tolling Order fell into the latter camp.”). Millett also explains, briefly, that the landowners still lose, but on the merits.

Judge Griffith (joined by Judges Katsas and Rao) separately expressed concern over “delayed judicial review, uninterrupted construction, and district courts’ swift transfer of property” and suggested, inter alia, that mandamus may sometimes be appropriate. Judge Henderson would have upheld the D.C. Circuit’s prior approach to tolling orders as a matter of stare decisis.

On the subject of Humphrey’s Executor, check out U.S. Postal Service v. Postal Regulatory Commission, another Agency v. Agency case. How is it that two federal agencies can be on different sides of the same case? Here is then-Judge Kavanaugh’s explanation (which Judge Rao cited in her concurrence): “Our ability to decide this case thus follows from Humphrey’s Executor and accords with courts’ previous handling of disputes between an independent agency and a traditional executive agency (or another independent agency).” Okay, but what about the merits of this particular case? Judge Griffith penned the majority (joined by Judges Rogers and Rao) — the details of which I’ll let you read for yourself. Be warned: it involves ratemaking, “Inbound Letter Post” pricing, disclosure under “the Postal Accountability and Enhancement Act,” the “public interest” (which is “inherently open-ended”), dissenting commissioners, and cannibals (sort of).

In United States v. Bowser, Judge Griffith (joined by Judges Henderson and Wilkins) addressed “charges that [the defendant] obstructed an investigation by the Office of Congressional Ethics into his work as chief of staff to a Member of Congress.” This case doesn’t have much to do with administrative law, but it is about the federal government and politics. If you work on the Hill and want to avoid prison, it wouldn’t hurt to read it. A highlight? It turns out that you’re much better off obstructing an investigation by the Office of Congressional Ethics than one by the House of Representatives itself.

Finally, Judge Millett (joined by Chief Judge Srinivasan and Judge Garland) authored Urquhart-Bradley v. Cushman & Wakefield, Inc. If you have time this weekend and want to learn about personal jurisdiction (and who doesn’t?), this is the case for you. It turns out that the fiduciary shield doctrine — which holds that “‘a nonresident corporate agent generally is not individually subject to a court’s jurisdiction based on acts undertaken on behalf of the corporation'” — plays no role, constitutional or otherwise, in personal jurisdiction analysis in the District of Columbia. Here is a taste of Millett’s analysis: “when evaluating under the Due Process Clause an individual’s contacts with the forum state, courts cannot ignore contacts made by the individual just because they were made in his or her capacity as an employee or corporate officer. Contacts are contacts and must be counted. Said otherwise, the Due Process Clause does not incorporate the fiduciary shield doctrine.”

And with that, enjoy the Fourth of July!

* The en banc Court — which rarely hears cases — heard two cases on May 24, 2017PHH Corp. and Raymond J. Lucia Companies, Inc. v. SEC.  In Lucia, the en banc Court deadlocked, resulting in a decision against the company, and in PHH Corp., the en banc Court rejected the constitutional challenge. The Supreme Court has now disagreed with both of those decisions. Perhaps Judge Rao will pen a sequel to one of her law-review articles.

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