Notice & Comment

D.C. Circuit Review – Reviewed: Belated Thanks

This has been a momentous week in the D.C. Circuit. Chief Judge Garland is now Judge Garland again, and Judge Srinivasan is now Chief Judge Srinivasan.* Here is the press release:

This news reminded me of something: I owe Chief Judge Srinivasan a belated thank you. I was a law firm associate in 2011. One day, out of the blue, I was asked to work with Michael McConnell on an upcoming Supreme Court case. But there was a twist. The briefing for the case had already been submitted. Srinivasan had been counsel of record, but then became Deputy Solicitor General. So someone else had to argue the case, which led to McConnell, which led to an amazing opportunity for me. As you might imagine, Srinivasan’s briefs were formidable. Thank you Chief Judge!

In honor of Chief Judge Srinivasan, this week’s theme is gratitude. And if you like reading D.C. Circuit opinions, there is a lot to be thankful for.

Let’s start with Guam v. United States, which begins like this:

What is there to be grateful for about this opinion? Well, if you need a good primer on the distinction between CERCLA sections 107 and 113 — and no doubt some people do — then this opinion is a great place to start. There are also is an interesting paragraph that begins “CERCLA ‘is not a model of legislative draftsmanship'” that may be quoted again in the future.

Next, consider the two Azar cases, both authored by Judge Sentelle: Gresham v. Azar and Baystate Franklin Medical Center v. Azar. Gresham — which holds that HHS “acted in an arbitrary and capricious manner when he approved Medicaid demonstration requests for … Arkansas” — has received most of the attention, but Baystate is also interesting, including this paragraph:

We’ve covered Chevron Waiver before. This isn’t quite that, but it may be a cousin. (I’ve expressed my gratitude for Judge Sentelle before.)

Based on its caption, United States v. Cooper sounds like a run-of-the-mill criminal case. I’m grateful though that I read it more carefully. It has unusually colorful facts about a conspiracy to steal millions of dollars from the United States. Based on its caption, Jackson v. Modly also sounds fairly dull. In fact, however, it is quite important:

Finally, we end with Lovitky v. Trump:

Why am I grateful for this case, aside from the interesting discussion of the absurdity doctrine on pages 13 to 14 and a tough hypothetical on pages 17 to 18? Because it is about mandamus.

And with that, enjoy Valentine’s Day. Oh, one more thing. If you’re interested, just last year, then-Chief Judge Garland — to whom the Court owes a great deal of gratitude for seven years of leadership — authored an interesting opinion that touched on a particularly scandalous Valentine’s Day dance. Give it a read.

You’re welcome.

* More news, albeit from from last week:

Yes, you’ve read that correctly — the D.C. Circuit is looking for a court crier. How cool is that?

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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