Notice & Comment

D.C. Circuit Review – Reviewed: Get Out of Jail Free Card

Each week, I try to come up with some theme to tie the Court’s cases together. But what to do when I’m traveling?* Here’s a solution — a Get Out of Jail Free card! I can’t play this card often. But this week? I’m going to play it.

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One thing I enjoy about reading D.C. Circuit opinions is watching the Court’s judges think through hard legal questions. The Court is at its best when it shows its work and its judges candidly engage with the arguments. That is how a court builds and maintains its integrity.

Consider United States v. Thompson. This isn’t an administrative law case (it’s not even an “admin law”-ish case). But if you want to see a court thinking through a problem, it’s a good example. The issue concerns this statute:

Here’s the question: Does this statue capture an overseas conspiracy to possess with intent to distribute?

Judge Silberman (joined by Chief Judge Garland) concluded that the answer is “no,” even though that decision creates a circuit split: “the omission of the third crime, possession with intent to distribute, from the extraterritoriality provision could not be a more striking illustration of the interpretive maxim expression unius est exclusio alterius. It certainly appears that Congress did not intend possession with intent to distribute to be extraterritorial.” The majority nonetheless concludes that the error is harmless because “it is quite challenging to imagine any evidence that would be probative of a conspiracy to possess with intent to distribute that would not also be evidence of a conspiracy to distribute.”

Judge Millett disagreed with the majority’s analysis but agreed with its bottom line. Here is a sample of her analysis:

There is a lot more going on, but you get the point: The Court is engaged in a classic statutory interpretation battle. Trust me, it is worth reading.

The Court did decide a few administrative law cases this week too. Again, these decisions are worth reading; the Court’s thinking is on display. In New York v. EPA, Judge Randolph (joined by Judges Wilkins and Katsas) upheld EPA’s refusal “to expand the [Northeast Ozone Transport] Region to include the upwind States of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remaining portions of Virginia.” After all, “[m]any of the States’ arguments against EPA’s denial derive from a fundamental misunderstanding of the scope of EPA’s discretion,” and “[t]he States have given us no reason to question EPA’s judgment that its current approach to regulating the interstate transport of ozone is a proven, efficient, and cost-effective means of addressing downwind air quality concerns that the agency has employed.” In Environmental Defense Fund v. EPA, Judge Millett (joined by Chief Judge Garland and Judge Edwards) rejected “EPA’s failure [under the Toxic Substances Control Act] to require companies to ‘substantiate’ that a chemical identity they wish to keep confidential is not ‘readily discoverable through reverse engineering.’” EPA’s “omission of any inquiry into a chemical identity’s susceptibility to reverse engineering effectively excised a statutorily required criterion from the substantiation process.” And in Air Transport Association v. FAA, Judge Rogers (joined by Judges Tatel and Randolph) held that a requiring an airport to pay for “off-site stormwater drainage and Superfund remediation did not constitute the impermissible diversion of airport revenues or violate the Anti-Head Tax Act.” The Anti-Head Tax Act “bars a State from collecting a tax or other charge on ‘(1) an individual traveling in air commerce; (2) the transportation of an individual traveling in air commerce; (3) the sale of air transportation; or (4) the gross receipts from that air commerce or transportation,’” but the “challenged charges are imposed in exchange for the utility’s services provided to the Airport” and “not on airline passengers or air transportation in any form.”

Finally, in Commonwealth Land Title Ins. v. KCI Technologies, Inc., Judge Wilkins (joined by Chief Judge Garland and Judge Tatel) addressed “breach of contract and negligence claims against KCI and WMC in connection with four allegedly defective surveys that the two entities delivered to ICG 16th Street Associates.” I’ll leave it at that! (That said, 1Ls preparing for your CivPro exam: observe that the Court makes an Erie guess.)

And that’s the week.

* See Selection of Administrative Law Judges, Administrative Conference of the United States.

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