Notice & Comment

D.C. Circuit Review – Reviewed: Congratulations all around

Nasdaq may have broken a seven-week losing streak on Wall Street, but its losses continued at Constitution Avenue. More on that in a moment, but first a quick look at non-opinion news because this week has been an eventful one at the D.C. Circuit.

On Monday, the Supreme Court unanimously vindicated the D.C. Circuit, which was on the short side of a 9-2 circuit split on how to decide whether a party has waived its right to compel arbitration under the Federal Arbitration Act. Citing the “strong federal policy favoring arbitration,” nine circuits had crafted an “arbitration-specific waiver rule demanding a showing of prejudice.” The Supreme Court sided with the D.C. Circuit (and the Seventh) in rejecting it, explaining that the “policy favoring arbitration does not authorize federal courts to invent special, arbitration-preferring procedural rules.”

On Tuesday, a panel of the D.C. Circuit granted the RNC an administrative injunction prohibiting Salesforce from turning RNC fundraising records over to House Select Committee to Investigate the January 6 Attack on the United States Capitol, while the Court considers the RNC’s emergency motion for an injunction pending appeal. RNC appeals from the district court’s order allowing Salesforce to comply with the committee’s subpoena. As is typical with these sorts of administrative orders, the panel cautioned that its decision “should not be construed in any way as a ruling on the merits of that motion.”

On Wednesday and Thursday, there were important developments on the nominations front. The Senate Judiciary Committee advanced the nomination of Judge Michelle Childs to fill Judge Tatel’s seat.  Judge Tatel took senior status last week. Congratulations are also due to Judge Florence Pan, who was nominated  to take Judge—soon to be Justice—Ketanji Brown Jackson’s seat. Judge Pan was appointed last year to the U.S. District Court for the District of Columbia, after a distinguished career in the U.S. Attorney’s Office for the District of Columbia and on the Superior Court for the District of Columbia. Congratulations, Judge Pan.

The week also brings three classic administrative law opinions from the D.C. Circuit.

In Nasdaq Stock Market LLC v. SEC, the Court denied the exchanges’ petitions challenging the SEC’s regulation concerning the collection and dissemination of securities market data. In the opinion, Judge Rogers (joined by Judges Rao and Randolph) walks through a textbook “arbitrary and capricious”review and concludes that the Commission “considered the relevant factors and articulated a rational connection between the facts found and the choice made.” The opinion emphasizes the limits on courts’ review under State Farm, including (1) that “when an agency’s decision is primarily predictive, the court requires only that the agency acknowledge factual uncertainties and identify the considerations it found persuasive,” and (2) that “[a]n agency’s duty to consider economic impacts does not necessarily require a precise cost-benefit analysis” or a foundation in “empirical data.”

In Inteliquent v. FCC, the Court also denied a petition for review after conducting an “arbitrary and capricious” review. The petition challenged an FCC rate cap on tandem switch services, which are “links in the routing chain for toll-free telephone calls placed from a landline.” In an opinion helpfully illustrated with diagrams of the routing chain for toll-free telephone calls, Judge Ginsburg (joined by Judges Pillard and Rao) walks through the considerations the petitioner argued that FCC unreasonably ignored or relied upon and concludes that the agency provided a reasoned explanation for its treatment of each.

Finally, in Ross v. SEC, the Court affirmed an SEC order denying the appellant’s application for a whistleblower award. The SEC’s decision depended upon its construction of statutory terms, with which Judge Henderson (joined by Judges Rogers and Wilkins) agreed.  Although the Court invoked the Chevron framework, it ultimately concluded that the SEC’s construction was compelled by the statute and therefore resolved the appeal at Step One.

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