Notice & Comment

D.C. Circuit Review – Reviewed: Clerks?

I received an email a few days ago from a student looking to clerk.* He has authorized me to post it here.

Re: Mailing Clerkship Applications to Chambers During Quarantine

Professor Nielson,

I’ve been working on clerkship applications over the past week and just realized that judges are unlikely to be in chambers to receive any applications that I physically mail to them. I have all of my materials ready to send out, but would it be better to wait to send them until judges are more likely to be in chambers? Or does it not really matter because it will sit in a stack regardless.

Along similar lines, would it be difficult to get professors to mail out LORs [letters of recommendation] at the moment? My recommenders have been able to email LORs to the judges accepting applications via email, but is professors’ access to their offices/secretaries too limited to be able to mail out 15-20 letters of recommendation?

[name omitted]

The second part of the student’s question is relatively straightforward. If needs be, I suspect most professors will still send letters. The first part of the question, however, is more difficult.

As many readers know, clerkship hiring is a mess with no perfect solution. The Plan sets dates for when a student can apply using OSCAR, an automated system. In particular: “Judges [who follow the Plan] will not seek or accept formal or informal clerkship applications, or seek or accept formal or informal recommendations, before 12:00 pm EDT on June 15, 2020. Judges also will not directly or indirectly contact applicants, or schedule or conduct formal or informal interviews, or make formal or informal offers, before 12:00 pm EDT on June 16, 2020. A judge who makes a clerkship offer will keep it open for at least 48 hours, during which time the applicant will be free to interview with other judges.” If a judge doesn’t follow the Plan, students apply the old-fashioned way — with a postage stamp.

OSCAR posted an updated about COVID-19 a couple of weeks ago:

There hasn’t been an update since.

My instinct is that if a judge hasn’t hired already, he or she is likely to wait until June, so it is very unlikely that applying by paper now will help very much. But I don’t know that. I do know that some judges aren’t spending much time at the courthouse. Indeed, I know a law clerk who hasn’t been to chambers in nearly a month and who does all of the work remotely. That said, for judges who don’t follow the Plan, it probably makes sense for students to apply as soon as they receive their 2L grades (which will all be passes, most likely). But that’s just an educated guess. Who knows?

It was a very busy week in the D.C. Circuit — which means a lot of work by law clerks, presumably working from home.

Here is a quick rundown:

  • Gulf South Pipeline Company v. FERC: Judge Rao, joined by Judges Henderson and Randolph, penned an easy-to-read FERC opinion (which isn’t simple to do). Here is a good summary: “FERC failed to reasonably explain its denial of incremental-plus rates. FERC’s precedent suggests that incremental-plus rates are appropriate when it is possible to track which shippers are using expansion facilities, thus ensuring that a pipeline company will not over recover its construction costs. FERC denied incremental-plus rates here even though Gulf South will indisputably be able to track which shippers use the expansion facilities. FERC’s sole rationale for doing so was that the expansion facilities and existing facilities will be operated as a single integrated system, but the Commission failed to explain why that fact supported the denial of incremental-plus rates. We therefore vacate the Commission’s order in part.”
  • In re Mustafa Al Hawsawi: Judge Henderson, joined by Judges Tatel and Ginsburg, denied mandamus challenges to a judge at Guantanamo Bay. Much of the decision is factbound, but the discussion of the standard (specifically, its discussion of discretion) is one of law. Here is the conclusion: “Reviewing all of the grounds for recusal proffered by the Guantanamo defendants together — Parrella’s CTS fellowship, his relationship with Groharing, the possibility of future DOJ employment and his voir dire responses — we conclude that it is neither clear nor indisputable that Colonel Parrella should have recused himself. The circumstances of Parrella’s career and relationships do not constitute reasonable bases for the extraordinary remedy of mandamus.” Compare In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019) (Tatel, J.)
  • Sierra Club v. EPA:  Judge Wilkins authored the opinion (joined by Judges Garland and Randolph) about whether a guidance document concerning the Clean Air Act qualifies as a “final agency action.” It does not. Notably, Wilkins concurred to emphasize that because the guidance is nationally applicable, any future challenges to it as applied in specific cases must be heard in the D.C. Circuit. That concurrence prompted Randolph to say he saw “no reason to decide what we would decide if only the case before us were a different case.”
  • NRDC v. Wheeler: Chief Judge Srinivasan (joined by Judge Tatel) authored this opinion, which concerns Mexichem Fluor, Inc. v. EPA, 866 F.3d 451 (D.C. Cir. 2017). This case involves EPA action surrounding hydrofluorocarbons. The simple version is that in 2015, the EPA promulgated a new regulation disallowing their use. In Mexichem, however, the D.C. Circuit concluded that the EPA could not force users who had already switched to HFCs to make a second switch and so partially invalidated the rule. In 2018, the EPA suspended the entire 2015 rule without going through notice-and-comment. That, said Srinivasan, was error. Judge Rao dissented, arguing that while the 2018 agency action was final, it constituted an interpretive rather than legislative rule because it “did no more than articulate the EPA’s view of what was required by [the 2015 decision] in the ‘near term’ and pending further rulemaking.” The majority disagreed: “But even assuming an agency rule can determine ‘legal rights and obligations’ or carry ‘legal consequences’ (so as to amount to final agency action) but still lack ‘legal effects’ (so as to fall short of a legislative rule) the 2018 Rule is not such a needle-threading rule.” If you study administrative law, you should read this one. (On the subject of clerking, Rao’s clerks have had a busy few months! See also In re FBOP Execution Protocol Cases, supra.)
  • Board of County Commissioners v. DOT: Judge Silberman, joined by Judges Rogers and Wilkins, made short work of the claim that the DOT erred by concluding that an airport was not eligible for a subsidy. Here is a sample of the analysis: “It is undisputed that Hagerstown Airport did not meet the statutory enplanement requirement for fiscal year 2018, or in four out of the previous five years. The petitioners argue that it was arbitrary and capricious for the Department to refuse to grant the airport a waiver as it had done four times previously, in part because the decision was inconsistent with those prior waivers …. [W]e are unconvinced by the contention that the Department acted arbitrarily because it had been so forgiving in the past. Apparently ‘no good deed goes unpunished.’ Under the petitioners’ theory, it seems the Department would be obliged to grant Hagerstown a waiver of the enplanement requirement perpetually. But the Department was entitled to credit Hagerstown’s explanations and predictions less after another year of noncompliance.”
  • In re FBOP Execution Protocol Cases: There are not a lot of death penalty opinions in the D.C. Circuit, but this is one — and it is a long one. Well, that is not exactly true. The Court’s per curiam opinion is actually pretty short. The length comes because Judges Katsas and Rao each wrote lengthy concurrences and Judge Tatel dissented. Here is a quick summary, from Katsas: “The principal question in this appeal is what constitutes a ‘manner’ of execution within the meaning of the Federal Death Penalty Act (FDPA). The government says that ‘manner’ here means ‘method,’ such that the FDPA regulates only the top-line choice among execution methods such as hanging, electrocution, or lethal injection. The plaintiffs, the district court, and Judge Tatel say that ‘manner’ encompasses any state execution procedure, down to the level of how intravenous catheters are inserted. Judge Rao agrees, at least if the procedure is set forth in a state statute or regulation. In my view, the government is correct.” My general rule is to not dive deeply into cases you’ve already heard about, which likely applies here. But I will say this: Katsas and Rao agree about the judgment, but not a lot more.
  • Western Surety Company v. U.S. Engineering Construction: Judge Sentelle, joined by Judges Pillard and Katsas, addressed a construction performance bond. Here is a taste: “Because we do not conclude that the bond is ambiguous, we need not address U.S. Engineering’s arguments that surety bonds should be construed liberally in favor of the beneficiary and to avoid a forfeiture.” I’ll leave it at that.

And that’s the week. (What a crazy, sad time. Stay safe.)

* If you are a judge looking for a clerk, email me. He’s great.

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