Notice & Comment

D.C. Circuit Review – Reviewed: Congratulations, Judge Childs (And More on “The Glory of the Mundane”)

Earlier this week, Judge Griffith (ret.) wrote a post here at Notice & Comment that began with this thought:

Life on the D.C. Circuit is a mixture of the grand and the mundane. …  I’m reminded of my interview with White House Counsel when President George W. Bush was thinking of  nominating me to fill a vacancy on the D.C. Circuit. One of the White House lawyers (who shall remain nameless) asked me with genuine incredulity, “Tom, are you sure that you want this? How can you stand the thought of spending the rest of your life doing administrative law?”

Sounding a similar theme (but without a cool first-hand story), here is a post from when Judge Rao was confirmed:

With these thoughts in mind, I extend congratulations to Judge J. Michelle Childs, who has just been nominated to the D.C. Circuit. It appears that she too can look forward to years of mundane cases!

I kid, of course. As Haley Proctor explained, the D.C. Circuit also gets more than its fair share of “hot-button issues.” Further, what look like a “mundane” question often can be quite interesting. Indeed:

[S]ometimes interesting cases do not attract popular attention. And sometimes cases that do attract popular attention are not, in fact, all that interesting — especially depending on how they are resolved. In other words, it often is better to be the head of a dog than the tail of a lion; addressing interesting issues in “boring” cases can be more meaningful than addressing small issues in “major” cases. Of course, some cases are both interesting and major while other cases are neither. But the principle is clear: appearances can be deceiving.

I do not know Judge Childs. She is a district judge in South Carolina (which worked out well for Judge Henderson, too). It does not appear that Judge Childs has decided that many federal administrative law cases,* but, from her biography, she was Deputy Director of the Division of Labor within the South Carolina Department of Labor and a Commissioner of the South Carolina Workers’ Compensation Commission, which sure sounds like “admin law” to me.

Congratulations, Judge Childs.

* Just to get a rough sense of her approach to administrative law, I did the following search within the District of South Carolina: advanced: (chevron skidmore chenery “hard look”) & JU(childs). That search came back with 15 hits. Some are irrelevant but a few are worth flagging. See Career Counseling, Inc. v. Amerifactors Fin. Group, LLC, 3:16-CV-03013-JMC, 2021 WL 3022677 (D.S.C. July 16, 2021) (discussing deference, sub-delegation, and interpretative rules); Webb v. Commr. of Soc. Sec. Administration, 8:17-CV-01912-JMC, 2018 WL 4575154 (D.S.C. Sept. 25, 2018) (discussing Chenery I); South Carolina v. United States, 329 F. Supp. 3d 214, 218 (D.S.C. 2018) (granting preliminary injunction in state challenge to federal plan to “terminat[e] the mixed oxide fuel fabrication facility project … currently under construction at the Savannah River Site … in Aiken County, South Carolina”), vacated and remanded, 912 F.3d 720 (4th Cir. 2019) (finding lack of standing).

A couple of her footnotes are also worth noting:

  • Young v. AMISUB of S.C., Inc., 0:18-CV-01601-JMC, 2018 WL 5668619 (D.S.C. Nov. 1, 2018): “Notwithstanding the ongoing debate among legal commentators regarding the use of legislative intent and history,3 courts routinely examine it, whether rightly or wrongly, when presented with certain legal questions. … 3 Compare Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 62 (1994) (‘Wait. Am I not a notorious opponent of legislative history? That is indeed my position….’), and Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 517 (‘And to tell the truth, the quest for ‘genuine’ legislative intent is probably a wild-goose case anyway.’), with Jerry Mashaw, As If Republican Interpretation, 97 YALE L.J. 1685, 1686 (1988) (‘Any theory of statutory interpretation is at base a theory about constitutional law. It must at the very least assume a set of legitimate institutional roles and legitimate institutional procedures that inform interpretation.’), and Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 593-94 (1995) (‘To carry out its [interpretive] task, the court must adopt—at least implicitly—a theory about its own role by defining the goal and methodology of the interpretive enterprise and by taking an institutional stance in relation to the legislature.’).”
  • South Carolina v. United States, 1:16-CV-00391-JMC, 2017 WL 976298 (D.S.C. Mar. 14, 2017): “Indeed, as Defendants note, even the rule of construction favoring a presumption of consistent usage ‘readily yields to context.’10  ….10 The court notes that the two cases on which Defendants rely for the proposition that the presumption of consistent usage readily yields to context, King and Utility Air, interpreted the Patient Protection Affordable Care Act (“ACA”) and the Clean Air Act, respectively. The ACA is a sprawling legal text that ‘contains more than a few examples of inartful drafting’ after being composed ‘behind closed doors rather than through the traditional legislative process’ and passed under ‘a complicated budgetary procedure … which limited opportunities for debate and amendment,’ resulting in a statute that ‘does not reflect the type of care and deliberation that one might expect of such significant legislation.’ King, 135 S. Ct. at 2492. The Clean Air Act, as amended, is ‘a lengthy, detailed, technical, complex, and comprehensive response to a major social issue,’ Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 848 (1984), that, due to poor draftsmanship contains ‘profligate use’ of ‘obviously’ inconsistent terminology that is ‘not conducive to clarity,’ Util. Air, 134 S. Ct. at 2441. Of both Acts, an unimpressed Supreme Court pronounced that they are, on the whole, ‘far from a chef d’oeuvre of legislative draftsmanship,’ forcing the Court to ‘do [its] best’ in interpreting specific provisions of these overgrown statutes that contain obvious errors. King, 135 S. Ct. at 2492, 2493 n.3; Util. Air., 134 S. Ct. at 2441. Largely because of these characteristics, the Supreme Court determined that the presumption of consistent usage readily could be jettisoned.”

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