Notice & Comment

D.C. Circuit Review – Reviewed: Gone Fishin’

This is my last week of summer — next week, the 1Ls arrive. I would say my summer vacation is coming to an end but, in fact, it doesn’t feel like I’ve had a vacation at all. Instead, this summer has been full of long days and short nights. (Hopefully, the result of all those hours will emerge in the coming months.) That’s why, today, I’m leaving work early to take the kids fishing. We’re going to the mountains where there is no cell coverage and few, if any, distractions. And who knows? Maybe we’ll see a grouse, yellow-bellied marmot, or even a bear.

I bet the D.C. Circuit would like to go fishing too. It also has had a busy summer. And soon enough, the Court will start hearing cases again. For now, however, I think the torrent of cases is slowing down. Two weeks ago we had 14 cases. And last week we had 14 more. And there were many, many cases in July — including some very long ones. This week, however, there are only seven cases. And if history is a true guide, next week there will be fewer still. And come September, there will be very cases indeed. Of course, that is because the D.C. Circuit will have begun hearing new cases, starting the process over again.

Let’s start with Sierra Club v. Department of Energy, decided by Judge Wilkins (and joined by Judges Henderson and Sentelle). This is an important case about natural gas. It also relates to a case decided last year: Sierra Club v. FERC, 827 F.3d 36 (D.C. Cir. 2016). FERC has already approved a project to export liquefied natural gas, and that decision was affirmed by the D.C. Circuit. “However, the export of LNG out of that terminal requires separate approval from the Department [of Energy].” The Energy Department granted that approval, and the D.C. Circuit now affirms. There is a lot going on but I found this interesting: “To the extent Sierra Club suggests the Department should have weighed environmental concerns more heavily before granting the … application, it fails to overcome the presumption in favor of exports.” I am not an expert on energy law, but I believe this is an important case, especially for those in the export business.

In Midwest Division – MMC, LLC v. NLRB, Judge Srinivasan (joined by Chief Judge Garland) addressed a situation in which a hospital investigated “two nurses for substandard conduct” but did not allow a union representative to accompany them in their hearings. Here is the Court’s holding:

We set aside the Board’s determination that Menorah improperly denied the nurses’ requests for union representation in the peer-review-committee hearings: when, as here, employees are not obligated to take part in an investigatory hearing, there is no requirement that they be permitted to bring a union representative if they elect to participate. We sustain the Board’s decision in all other respects, including the Board’s finding that Menorah committed unfair labor practices in denying the union’s request for information about the peer-review committee and in maintaining a confidentiality rule barring workers from discussing incidents subject to the committee’s oversight.

Judge Kavanaugh dissented in part. He would decide the first issue more broadly and the second issue differently: “Even taking into account our deferential standard of review, I cannot uphold the Board’s decision on this issue. … While the hospital’s confidentiality interest in the requested information is weighty, the Union’s need for that information is minimal at best.”

In Banner Health v. Price, a 57-page per curiam decision (Judge Rogers, Griffith, and Srinivasan) about “the Medicare outlier-payment program,” the panel returned to the ground it covered in 2015. Here are the holdings about the new issues in this case:

[W]e affirm the district court’s denials of their motions to supplement the record and to amend their complaint, and its decision that HHS acted reasonably in a manner consistent with the Medicare Act in fiscal years (“FYs”) 1997 through 2003, and 2007. HHS, however, has inadequately explained aspects of the calculations for FYs 2004 through 2006, and we therefore reverse the grant of summary judgment.

There is a lot going on in this case, but I found this discussion interesting for litigation nerds (like me): should “tables depicting data from the administrative record” count towards a brief’s page limits? Yes, it turns out. “The Hospitals contend that the tables should not count towards the page limits because they ‘faithfully reproduced record data.’ Appellants’ Br. 92. The tables, however, compile data from various disparate sources and present it in a simplified manner meant to persuade.”

In SecurityPoint Holdings, Inc. v. TSA, Judge Ginsburg (joined by Judges Henderson and Srinivasan) covered territory from a 2014 decision. “SecurityPoint is the owner of a method patent covering, as relevant here, the practice of placing onto a cart bins that have passed through an x-ray screening machine at an airport security checkpoint ….” SecurityPoint also is an “advertising broker” at some airports, which means it provides checkpoint equipment in exchange for the right to sell advertising inside of the relevant bins. These arrangements involve an “MOU” that is approved by TSA. SecurityPoint has accused TSA of patent infringement. It also says that TSA revised the MOU to punish SecurityPoint for bringing that patent claim. Here, the D.C. Circuit rejected this argument: “The TSA’s decision was neither arbitrary and capricious nor a violation of SecurityPoint’s right to petition, protected by the First Amendment.” (This is a really interesting case with unusual facts; read it.)

Coleman v. Duke (Judge Millett, joined by Judge Tatel) is a (relatively) fact-bound discrimination case about whether the plaintiff, in fact, exhausted administrative remedies. The Court said yes; Judge Henderson dissented to say no. And United States v. Meadows (Chief Judge Garland, joined by Judge Williams) is a (relatively) fact-bound about unemployment benefits fraud. The Court rejected allegations of prosecutorial vindictiveness and improper trial statements, but did offer this warning: “Although we find no plain error in this case, we do caution the government that there is a considerable risk of error — and prejudice — when a prosecutor attempts to offer a true statistical analysis, unsupported by expert testimony, in closing argument.” Judge Rogers concurred in part and in the judgment, urging that the closing argument was improper but not sufficiently prejudicial.*

My advice to the D.C. Circuit: Before you start hearing cases again (which is coming up), take a fishing trip. Now I’m off to the mountains!

* There is one more case this week: United States v. Griffith. Because I had some involvement with the briefing, albeit limited, I won’t comment.

8/25/17: A few typos were corrected.

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