It’s spring and hope springs eternal. We are playing baseball again, Bryce Harper is emerging from a slump, the Nats are only 2 games out of first place (of course, they’ve played only 15 games), and the D.C. Circuit handed down five decisions this week in which there was only a single dissent! The partisans among you cheer dissents, but some of us, including this author, don’t always.

Count me a Robertsonian on this. Following his first term as Chief Justice, John Roberts gave an interview to Jeffrey Rosen that was published in The Atlantic. The Chief explained his hope that the Supreme Court would reach unanimity more often. In doing so, he pointed to the D.C. Circuit as a model: 

“The most important source of his decision to resurrect Marshall’s vision of unanimity, Roberts says, was his brief experience as an appellate judge on the U. S. Court of Appeals for the District of Columbia Circuit. ‘For whatever reason, it is firmly embedded [in] that court that you function as a court,’ he said approvingly. ‘It is part of a pushback against the higher degree of politicization of the appointment process there.’ In reaction to this politicization, judges on the D.C. Circuit have agree, in Roberts’s words, ‘We’re not politicians; we’re judges, we’re a court, and we’re going to work real hard to be a court – parlay because we don’t like people thinking we’re not, and partly because some of us had experience [on the court] in the bitter period where we weren’t.’ Roberts served on the D.C. Circuit for only two years, but the experience of seeing his colleagues working to achieve consensus impressed him. ‘That was my first experience as a judge, and I liked the way it worked,’ he said. . .. ‘Politics are closely divided,’ he observed. The same with Congress. There ought to be some sense of some stability if the government is not going to polarize completely. It’s a high priority to keep any kind of partisan divide out of the judiciary as well.’”

My friend and former colleague on the D.C. Circuit David Tatel and I give a presentation in which we discuss judicial collegiality and how it worked on the D.C. Circuit during our time there. Judge Tatel was appointed by President Bill Clinton and is a political progressive. I was appointed by President George W. Bush and am a political conservative (by traditional, not current standards). The two of us speaking together about collegiality has a certain “two-headed calf at the county fair” quality about it in this time of toxic polarization. In the past year, we have taken our show on the road to the American Law Institute’s annual meeting, Berkeley Law, UVA Law, and Duke Law (this week). We hope to speak at other venues in the future. Our purpose is both descriptive and prescriptive. We describe our experience on the D.C. Circuit as was captured in the Chief Justice’s interview with Jeffrey Rosen. And we evangelize for a continuation of that approach to judging. This week the D.C. Circuit showed how that is done.

In Susan Qashu v. Marco Rubio, 24-5201, the Court considered a garden-variety employment dispute between the State Department and a former fellow. Qashu, the fellow, claimed that the State Department violated the Rehabilitation Act (which applies Americans with Disabilities Act standards to federal employees) by failing to accommodate her visual impairment, and by discriminating and retaliating against her on the basis of the impairment. Judge Walker, joined by Chief Judge Srinivasan and Senior Judge Ginsburg, affirmed the district court’s award of summary judgment to the State Department. Applying familiar burden-shifting frameworks, the Court concluded that no reasonable jury could find that Qashu was denied a reasonable accommodation, and that no reasonable jury could find pretextual the Department’s legitimate reasons for deciding not to renew Qashu’s fellowship and make her a project leader.

Under the North Atlantic Free Trade Agreement (“NAFTA”), foreign investors may initiate arbitration proceedings directly against a party government for violations of Article 1105(1) that require each party “accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security.” US v. Lion Mexico Consolidated L.P., No. 24-7185 concerns loans made in 2015 by Canadian investor, Lion Mexico Consolidated (“Lion”), to Mexican businessman, Cárdenas, to finance real estate projects in Mexico. Cárdenas never made a single payment on the loans. Lion initiated an arbitration proceeding under the Federal Arbitration Act (“FAA”) in Washington, D.C., and the arbitral tribunal issued an award of more than $47 million in favor of Lion. Mexico filed a petition in district court seeking vacatur of the award by arguing that the tribunal exceeded its powers and argued in the alternative that the tribunal acted in manifest disregard of the law. The district court denied Mexico’s petition, granted Lion’s cross-petition for confirmation of the award, and denied Cárdenas motion for intervention. Judge Pillard, joined by Judges Walker and Childs, affirmed the district court in full. First, on Mexico’s argument that the tribunal exceeded its authority, the Court reasoned that the tribunal did not exceed its powers arbitrator because the arbitrator engaged in interpreting the treaty by looking to NAFTA Free Trade Commission Interpretation Notes and prior arbitral decisions to interpret terms of the text. Second, on Mexico’s argument in the alternative that the tribunal acted in manifest disregard of the law, the Court found the tribunal’s interpretation of Article 1105(1) did not act in manifest disregard of the law because there was no showing that the tribunal refused to apply, or ignored all together, governing legal principles. Further, in affirming denial of Cárdenas’s motion to intervene, the Court found that the district court acted within its sound discretion finding that Cárdenas’s third-party interests were adequately represented by Mexico and the motion was futile and untimely.

The Clean Air Act requires oil refineries to introduce renewable fuels into fuels sold at gas stations. Congress created a “small refinery” exemption, defining a “small refinery” as one for which “the average aggregate daily crude oil throughput for a calendar year . . . does not exceed 75,000 barrels.” 42 U.S.C. 7545(o)(1)(K). “[A]t any time,” a small refinery may petition the Environmental Protection Agency (“EPA”) for “an extension of the exemption” due to disproportionate economic hardship. Id. 7545(o)(9)(B)(i). The EPA adopted implementing regulations, explaining a refinery must meet the “small refinery” definition “for the most recent full calendar year prior to seeking an extension” of the exemption and must meet the definition “for the year or years for which an exemption is sought.” 40 C.F.R. 80.1441(e)(2)(iii). In 2025, two refineries applied for the small refinery exemption regarding the 2024 compliance year. The EPA denied their applications because they did not provide evidence, they satisfied eligibility requirements for the year prior to the year in which they sought the exemption—2023. The refineries petitioned the D.C. Circuit for review of the application denials, arguing the EPA’s two-consecutive-year interpretation of the “small refinery” exception is (1) contrary to the Clean Air Act; and (2) contrary to the EPA’s own implementing regulation. In Alon Refining Krotz Springs, Inc. v. EPA, No. 25-1187 (D.C. Cir. Mar. 6, 2026), Judge Pan, joined by Chief Judge Srinivasan and Judge Rao, concluded the EPA’s denials violated its implementing regulation. The Court found the regulation’s text unambiguous—a “small refinery” must meet the definition for (1) the most recent calendar year prior to seeking an extension of the exemption; and (2) the year for which the exemption is sought. Here, when the petitioners applied in 2025, they met the “small refinery” definition for (1) most recent calendar year prior to seeking an extension of the exemption—2024; and (2) the year for which the exemption was sought—2024. The Court saw no limit on retroactive application in either the Clean Air Act or EPA’s regulations. The Court also rejected the agency’s “absurd results” retort. The majority declined to reach the statutory question. The Court vacated EPA’s orders and remanded to the agency for further proceedings. Judge Rao separately concurred, explaining she would have also found EPA’s interpretation inconsistent with the Clean Air Act. She interpreted the statutory definition as addressing only a single year of throughput data, especially in comparison to other Clean Air Act provisions addressing multiples years. EPA argued that any challenge to the implementing regulation (enacted in 2014) is time barred, but Judge Rao pointed out the refineries only challenge their denials—not the underlying validity of the regulation.

True the Vote, Inc., which pursues claims of voter fraud in the 2020 presidential election, sued the Internal Revenue Service (“IRS”), alleging that the IRS violated True the Vote’s constitutional rights by delaying the processing of its 501(c)(3) application to be considered tax-exempt as a non-profit organization. Over the course of that litigation, True the Vote was represented from 2013 to 2017 by Foley & Lardner, the Public Interest Legal Foundation, and the Center for Constitutional Jurisprudence, which the D.C. Circuit collectively referred to as the “Former Attorneys.” In 2017, True the Vote changed counsel and retained the Bopp Law Firm. Roughly a year later, the district court resolved the underlying claims through a consent order, and more than a year after that it awarded True the Vote nearly $789,000 in attorney’s fees under the Equal Access to Justice Act (“EAJA”). The fee award then triggered a dispute over whether the firms were entitled to be paid directly from the award through equitable charging liens rather than having the money first go to True the Vote. The Former Attorneys claimed they were entitled to almost $640,000, while Bopp sought $150,018.98 based on the EAJA submissions and separately argued that, under its billing records and fee agreement, it was entitled to more than $500,000. The district court held that the Former Attorneys had a valid charging lien but denied Bopp’s motion to enforce its own lien. It further concluded that Indiana law governed Bopp’s lien claim because Bopp’s fee agreement with True the Vote contained a contractual choice-of-law provision selecting Indiana law. In an opinion authored by Judge Walker and joined by Judge Pillard and Senior Judge Rogers, see True the Vote, Inc. v. IRS, et al., No. 25-5219, the D.C. Circuit vacated the district court’s order and remanded for further proceedings. The Court explained that under the Indiana Supreme Court’s decision in Koons v. Beach, 46 N.E. 587 (Ind. 1987), an attorney may establish an equitable charging lien either by showing that the attorney’s efforts secured the client’s fund or by showing that the client agreed, expressly or impliedly, to pay the attorney from that fund. The district court erred by treating those two routes as cumulative and requiring Bopp to satisfy both, when Indiana law makes them disjunctive. On remand, the district court may need to decide whether Bopp has established a lien, whether any competing liens have priority, and whether Bopp is entitled to the amount it seeks from the EAJA award.  

And finally, just to prove that unanimity is an aspiration that cannot always be attained, we have an order of the D.C. Circuit issued on Saturday, April 11, in National Trust for Historic Preservation in the United States v. Nat’l Park Serv., No. 26-5101 (D.C. Cir.). In fall 2025, President Trump ordered the demolition of the East Wing of the White House and began work on a new ballroom and various underground facilities beneath it. The district court granted the National Trust an injunction because (1) any construction order by the Executive Office of the President or the Office of the Executive Residence was likely ultra vires because Congress has exclusive authority of federal property and has not authorized such construction/demolition by statute; and (2) any actions by the National Park Service in the project were likely contrary to law under the Administrative Procedure Act because it too lacks statutory authority. The injunction contained an exemption for “actions strictly necessary to ensure the safety and security of the White House and its grounds, including the ballroom construction site, and provide for the personal safety of the President and his staff.” The district court entered a short stay to allow for appeal. The government sought a stay pending appeal. Judges Millet and Garcia remanded the case to the district court for further factual development and clarification of the injunction. The Court identified several factual ambiguities that bear on the irreparable harm analysis, particularly in light of the government’s shifting legal justifications for the demolition. For example, on remand the district court should clarify the government’s position on whether development of the ballroom project is necessary to ensure the safety and security of the underground facilities or the White House and its occupants. The district court should also clarify whether potential delay of the project imposes additional security risks, even though planning documents already reflect a three-year renovation timeline. The district court had not had occasion to address these questions because the government’s position had shifted between the district court hearing and appellate court briefing. Judge Rao dissented from the order and would have granted the government a stay pending appeal. She concluded the government had shown a strong likelihood of success on the merits for two reasons. First, she determined the Trust lacks associational standing because the White House is explicitly withheld by statute from the Trust’s purview. And she thought the assertions of “aesthetic injury” lacked concreteness. Second, Judge Rao pointed to statutory authority for the President to make “improvements” to the White House and concluded the ballroom project falls within the meaning of “improvement.” Finally, she concluded the government satisfied the other stay factors and rejected the need for a remand.