Notice & Comment

D.C. Circuit Review – Reviewed: Another Round of the * Game

When filing a brief in the D.C. Circuit, “an asterisk may be placed next to those authorities on which the brief principally relies, together with a notation at the bottom of the first page of the table stating: ‘Authorities upon which we chiefly rely are marked with asterisks.'” This prompts a game we’ve played before here at Notice & Comment. Once again, I’ve read all of the Court’s cases this week and identified the most important cited authorities. Looking at just the names of the authorities, can you tell what each opinion is about?

The Asterisk Game

United States v. Class: Class v. United States, 138 S. Ct. 798 (2018); District of Columbia v. Heller (Heller I), 554 U.S. 570 (2008); Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011); Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017); Doe v. Snyder, 101 F. Supp. 3d 672 (E.D. Mich. 2015).

D.C. Association of Chartered Public Schools v. District of Columbia: District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953); Gunn v. Minton, 568 U.S. 251 (2013); Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149 (1908).

American Federation of Government Employees v. Trump: Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994); AFGE v. Secretary of the Air Force, 716 F.3d 633 (D.C. Cir. 2013).

Olu-Cole v. E.L. Haynes Public Charter School: Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017); Honig v. Doe, 484 U.S. 305 (1988); Winter v. NRDC, Inc., 555 U.S. 7 (2008).

Idaho Conservation League v. Wheeler: Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007).

United States v. Monzel: Paroline v. United States, 134 S. Ct. 1710 (2014); United States v. Monzel (Monzel I), 641 F.3d 528 (D.C. Cir. 2011); United States v. Monzel (Monzel II), 209 F. Supp. 3d 73 (D.D.C. 2016).

NLRB v. Ingredion Inc.: Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951); Veritas Health Servs., Inc. v. NLRB, 895 F.3d 69 (D.C. Cir. 2018); HTH Corporation v. NLRB, 823 F.3d 668 (D.C. Cir. 2016).

GLH Communications, Inc. v. FCC: Press Commc’ns LLC v. FCC, 875 F.3d 1117 (D.C. Cir. 2017); Rural Cellular Ass’n v. FCC, 588 F.3d 1095 (D.C. Cir. 2009); Clearfield Trust Co.v. United States, 318 U.S. 363 (1943).

In re Trump: Cheney v. United States Dist. Court for D.C., 542 U.S. 367 (2004); Clinton v. Jones, 520 U.S. 681 (1997); In re Trump (4th Cir. July 10, 2019); In re Ford Motor Co., 344 F.3d 648 (7th Cir. 2003).

Here are the answers:

Class: It is easy to guess what this case is about; the cites to Heller should do the trick. I suspect this case may attract some attention, as it is back in the D.C. Circuit on remand from the Supreme Court, and it concerns the Second Amendment. Judge Griffith, joined by Judges Srinivasan and Sentelle, here concluded that there is no right to carry guns on the grounds of the U.S. Capitol — even if it is objectively difficult to determine what counts as the grounds of the U.S. Capitol, and even if subjectively you don’t know you are on the grounds of the U.S. Capitol. (Note: it is possible that the statute requires greater scienter, but the issue was not preserved.) Does this really comport with fair notice, especially given that criminal liability is involved? The Court says yes in light of the “principle that citizens are charged with generally knowing the law.” You may be wondering what Doe v. Snyder is about. Here is Griffith’s explanation: “The only case that Class identifies in which a court has struck down a law due to the difficulty of determining geographic boundaries is Doe v. Snyder, which involved a statute that prohibited registered sex-offenders from coming within 1,000 feet of ‘school property’ used for ‘educational instruction’ or ‘sports or other recreational activities.'”

Association of Chartered Public Schools: The authorities I highlight for this opinion may give some folks flashbacks to 1L Civ Pro, especially Mottley. Federal question jurisdiction is usually determined by the face of the well-pleaded complaint. But what is John R. Thompson Co.? It is a case that concerns the delegation of “legislative power” to the District of Columbia. How do statutes enacted by Congress specifically for the District of Columbia work with federal question jurisdiction? Judge Srinivasan, joined by Judges Henderson and Millett, tackled that issue: “We do not reach the merits of the Association’s claims because we conclude that the district court lacked jurisdiction over them. The Association contends that its claims under the School Reform Act, Home Rule Act, and Constitution fall within the district court’s original jurisdiction over claims arising under federal law. See 28 U.S.C. § 1331. None of those claims, however, arises under federal law within the meaning of the federal-question statute.”

American Federation of Government Employees: As Judge Griffith, joined by Judges Srinivasan and Randolph, explained this week: “District courts have jurisdiction over civil actions arising under the Constitution and laws of the United States, 28 U.S.C § 1331, but Congress may preclude district court jurisdiction by establishing an alternative statutory scheme for administrative and judicial review. To determine whether Congress has done so, we use the two-step framework set forth in Thunder Basin …. Under that framework, ‘Congress intended that a litigant proceed exclusively through a statutory scheme . . . when (i) such intent is ‘fairly discernible in the statutory scheme,’ and (ii) the litigant’s claims are ‘of the type Congress intended to be reviewed within [the] statutory structure.” Applying Thunder Basin, the Court held that “three executive orders regarding relations between the federal government and its employees” should have been resolved through the Federal Labor Relations Authority rather than a suit directly in district court. This is a pretty big win for the Administration, as the district court had concluded that “the President has constitutional and statutory authority to issue executive orders in the field of federal labor relations generally, but nine provisions of these executive orders violated the Statute.”

E.L. Haynes Public Charter School: As you may be able to tell from the cited authorities, this opinion is about the Individuals with Disabilities Education Act. Judge Millett (joined by Judges Rogers and Ginsburg) explained that the statute “creates a powerful statutory presumption in favor of maintaining the current classroom placement of a student with a disability when the school seeks to change his placement over a parent’s objections. That presumption is commonly known as the ‘stay put’ requirement. When a child with a disability has been suspended from school, stay put heavily favors promptly returning the child to the classroom.” Why did I include Winter, which is about the preliminary injunction standard? Take it away, Judge Millett: “The IDEA’s stay-put provision turns that traditional [preliminary injunction] framework on its head.” In particular, “it is the school, and not the parent, that bears the heavy burden of securing preliminary relief,” including when the school believes a student is dangerous and should go to a different school. (That said, the Court wasn’t sure about the risk posed: “The problems with the School’s position do not stop there. Its insistence that the denial of stay put can be sustained on the ground that readmitting M.K. posed an unacceptably high threat to the safety of the school community stands in glaring tension with its own independent decision to readmit M.K., which was made prior to the district court’s ruling.”)

Idaho Conservation League: I cheated a bit here — lots of cases in the D.C. Circuit concern Chevron and State Farm. Even so, this is an important case about whether EPA must set “financial responsibility requirements for the hardrock mining industry” under CERCLA. The answer? No. The Obama administration began the process of doing so but in February 2018, EPA decided not to issue such requirements. Applying deference, Judge Henderson — joined by Judges Griffith and Sentelle — upheld that determination: because the agency’s “interpretation [of ‘risk’] is reasonable, we defer to the EPA’s interpretation that it should set financial responsibility regulations based on financial risks, not risks to health and the environment.” But what about the logical outgrowth doctrine? “Under Circuit and Supreme Court precedent, the EPA’s Final Action not to adopt financial responsibility requirements for the hardrock mining industry constitutes a logical outgrowth of the Proposed Rule because ‘[o]ne logical outgrowth of a proposal is surely … to refrain from taking the proposed step,’ … accord Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 175 (2007) (‘Since the proposed rule was simply a proposal, its presence meant that the Department was considering the matter; after that consideration the Department might choose to adopt the proposal or to withdraw it. As it turned out, the Department did withdraw the proposal … We do not understand why such a possibility was not reasonably foreseeable.’).” The D.C. Circuit reads that principle broadly. Indeed: “Kicking against the goads, the Environmental Groups maintain that even if the EPA’s decision not to promulgate financial responsibility requirements for the hardrock mining industry is a logical outgrowth of the Proposed Rule, its reasons for changing course are not. … An agency’s decision to withdraw a proposed rule ordinarily stems from a changed view of the governing law or underlying facts. … Such a changed view does not alter whether an agency’s decision to withdraw a proposed rule is a logical outgrowth of the proposal.”

Monzel: If you recognize the cited authorities, you probably know that this isn’t a pleasant decision to read. Judge Millett’s opinion, joined by Judges Rogers and Katsas, addresses how to pay restitution to victims of child pornography. The Court upheld the district court’s discretion: “The bottom line is that that Paroline provided a ‘starting point’ for the district courts’ analyses. The Supreme Court did not carve its permissive guideposts into doctrinal stone. In many cases, the district courts have concluded that total offenders and future convictions are unknowable and uninstructive. The government in this case stated that it lacked ‘sufficient, reliable data from which to make reasonable estimates’ of the number of future convictions likely to involve images of Amy. The government added that it has no way to estimate the broader number of offenders who possess images of Amy. The district court accepted both representations. Under these circumstances, the district court did not abuse its discretion by focusing instead on the more defendant-focused and market-perpetuating factors, as well as the practical impact of the award.”

Ingredion Inc.: This decision is about — you guessed it — substantial evidence review. Judge Rogers, joined by Judges Srinivasan and Wilkins, upheld the agency’s decision based on a detailed dive into the facts. One paragraph in particular, however, caught my attention*:

GLH Communications, Inc.: This is a case about spectrum licenses that builds on other D.C. Circuit cases about spectrum licenses. Here is how Judge Srinivasan (joined by Judges Rogers and Pillard) explained the decision: “In administrative proceedings before the Commission, GLH challenged both the Commission’s decision to cancel the licenses and its refusal to give GLH a credit against its debt for the proceeds of the reauction. The Commission rejected GLH’s arguments, and GLH now appeals. We conclude that the Commission acted appropriately in canceling GLH’s licenses for failure to make the installment payments and in refusing to apply the reauction proceeds against GLH’s debt.” There is a lot going on here. Readers may find the discussion beginning on page 12 about federal common law and the Uniform Commercial Code especially interesting.

In re Trump: The last decision isn’t really a decision — it is a per curiam order from Judges Millett, Pillard, and Wilkins about the Foreign Emoluments Clause and whether the district court should have certified certain questions for appeal. The panel didn’t grant a writ of mandamus, but it strongly hinted that an interlocutory appeal is warranted. Here is a key paragraph:

You know, the asterisk game isn’t the most fun way to spend your weekend. That said, it is not every day that you see a cite to Clearfield Trust and a circuit split about the relationship between mandamus and interlocutory appeals.

* I cheated by including HTH Corporation in the asterisk game — the Court didn’t cite it! But Judge Williams, in that decision, criticized as “Mao”-ist the practice of making a company’s leaders read a statement and Judge Henderson expressed agreement with Williams. Judge Rogers, however, wrote separately to disagree: “Because the Board’s notice-reading order is consistent with our precedent enforcing the compromise option, there is no need to imply that the Board’s judgment in specific egregious circumstances has abandoned democratic principles.” This issue has divided the D.C. Circuit and, I suspect, will continue to prompt litigation.

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