Notice & Comment

D.C. Circuit Review – Reviewed: An Update on Lucia

Apologies: This is a quick post; I’m traveling this week.

Summers in the D.C. Circuit are busy. And it is now summertime. We have eleven opinions this week. Before getting to those cases, however, I want to discuss an update on a case that bounced around within the D.C. Circuit for a while before it went to the U.S. Supreme Court last year: Lucia v. SEC. As you may recall, Lucia is the case where a panel of the D.C. Circuit rejected an Appointments Clause challenge to the SEC’s administrative law judges; the en banc Court split evenly; and the U.S. Supreme Court granted cert and reversed, holding that SEC ALJs are inferior officers.

Afterwards, President Trump issued an executive order changing how agencies select ALJs. The E.O. gives more discretion to agency heads. In response, the Administrative Conference of the United States began a project about best practices to guide agencies in selecting their ALJs in the post-Lucia world. I was able to chair the committee that worked on that project. And yesterday, the Administrative Conference adopted recommendations on this subject.* If you are following the Lucia litigation, you may find the recommendations worth reading.


The D.C. Circuit decided a bunch of cases. Here we go.

Two cases resulted in especially lengthy opinions: United States v. Bikundi and J.D. v. Azar. Both are per curiam but with separate writings — in Bikundi, Judge Rogers concurred with the decision from Judges Tatel and Griffith. And Judge Silberman dissented in Azar from a decision by Srinivasan and Wilkins. Bikundi has a table of contents and Azar should have had one! Long story (very) short, in Bikundi, the panel affirmed in a criminal appeal about health-care fraud and in Azar, the panel “affirm[ed] the district court’s preliminary injunction against the government’s blanket denial of access to abortion for unaccompanied minors.” I suspect the Supreme Court will be asked to take a look at Azar (which includes a lot of discussion about class certification), especially given the dissent. Silberman does not pull his punches — including justiciability punches thrown at the Supreme Court itself.

Next, there is an interesting criminal appeal: United States v. Norman. In an ordinary week, I’d spend more time with this one, which contains a back-and-forth between Judges Sentelle (joined by Judge Griffith) and Judge Henderson about the use of acquitted conduct at sentencing. But I can’t this week; too many cases. Note: in Azar, there are seven references to Justice Kavanaugh between the two opinions. In Norman, there also is a reference to Kavanaugh. Interesting. When you read these cases, you may want to use “control F.”

An opinion that may not attract a lot of attention — but should — is Pennsylvania Interscholastic Athletic Assoc. v. NLRB. The line between employee and independent contractor is a fuzzy one and it has prompted a fair bit of litigation. Every few years, the D.C. Circuit gets an NLRB case about it. This is the most recent one. Judge Griffith — joined by Chief Judge Garland and Judge Pillard — holds that under D.C. Circuit precedent, “lacrosse officials working for the Pennsylvania Interscholastic Athletic Association … [are] independent contractors.” Here is a hint: the standard of review in these cases is particularly interesting.

We also have another case called “Sierra Club v. EPA.” Judge Rogers (joined by Judges Tatel and Pillard) concluded that a challenge to a decision made in Utah does not fall within the D.C. Circuit’s venue authorization because the decision was not nationwide in scope.

Dibacco v. Department of the Army (Judge Griffith, joined by Judges Henderson and Wilkins) begins this way:

For its part, Southwest Airlines Co. v. FERC (Judge Tatel, joined by Judges Millet and Katsas) begins as follows:

Both Dibacco and Southwest are worth reading. Alas, you’ll have to take my word for it because I don’t have time to explain.

For the law professors out there, you may be interested in Mawakana v. Board of Trustees of the University of the District of Columbia (per Judge Henderson, joined by Judges Rogers and Pillard), which concerns discrimination in the tenure process. Here is a key line: “Although the First Amendment grants a university certain freedoms, the freedom to discriminate is not among them.” And here is a key paragraph:

Grecian Magnesite Mining v. IRS is a case about the “U.S. office rule” and how to tax foreign corporations. Judge Srinivasan — joined by Judges Rogers and Ginsburg — has authored an opinion that even a non-tax person like me can (mostly) understand. That said, I read it earlier this week and now have forgotten everything about it! If you are a tax person, it may have more staying power in your memory. United Steel, Paper and Forest v. MSHA (per Judge Henderson, joined by Judge Rogers) addresses a statute with “a unique limitation: ‘[n]o mandatory health or safety standard . . . shall reduce the protection afforded miners by an existing mandatory health or safety standard.’” The regulation failed that standard. Judge Katsas dissented in part.

Finally, American Federation of Government v. FLRA (per Judge Henderson, joined by Judges Pillard and Wilkins) begins as follows:

Phew — that’s a lot of cases. I apologize that I wasn’t able to spend more time with them. What can I say? I’m a year behind; I’m still thinking about Lucia!

* A final copy of the recommendations is not yet available; here, however, is a link to a version that is similar to the final.

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