Notice & Comment

D.C. Circuit Review – Reviewed: Justice Breyer’s Replacement and the D.C. Circuit

The big news this week was Justice Breyer’s announcement that he will step down from the Supreme Court at the end of this Term upon the appointment of a successor. Readers of this blog who are inclined to think that most really important legal news must have some connection to the D.C. Circuit (and just to be clear, I’m not among that group) have noticed that the discussion of Justice Breyer’s replacement involves three judges with significant ties to the D.C. Circuit. Judge Ketanji Brown Jackson is on the D.C. Circuit. Justice Leondra Kruger of the California Supreme Court clerked for Judge David Tatel. And Judge J. Michelle Childs, currently on the District Court for South Carolina, has been nominated to fill Judge Tatel’s seat. (Judge Childs’s hearing before the Senate Judiciary Committee on that nomination, scheduled for February 1, has been postponed because she is under consideration for the Breyer seat.)

For those whose interests in this blog are more substantive, the D.C. Circuit handed down five decisions this week. Three were authored by Judge Judith Rogers.

In the first, Judge Rogers penned an opinion disposing of consolidated challenges to FERC orders that were argued in back-to-back hearings just last month! (That is a remarkable feat of timeliness that this author never came close to achieving. Kudos to Judge Rogers.) Both cases in City and County of San Francisco v. FERC, involved a tariff governing San Francisco’s use of Pacific Gas & Electric’s grid. In the first case argued (Docket No. 20-1313), FERC had agreed that PG&E had the discretion to only offer the municipality the more expensive of two distribution services when users needed energy above a specific kilowattage threshold. The panel, which included Chief Judge Srinivasan and Judge Tatel, held that FERC had failed to provide reasoned analysis when it rejected San Francisco’s claim that PG&E had unlawfully denied it the cheaper distribution service. In the second case argued (Docket No. 20-1084), the D.C. Circuit granted San Francisco’s petition for FERC to review its order on the proper interpretation of a grandfathering provision in PG&E’s tariff agreement.

Judge Rogers also authored a pair of decisions that will fascinate students of civil procedure. In Association of American Physicians & Surgeons, Inc. v. Adam Schiff, the panel of Judges Rogers, Rao, and Silberman affirmed the district court’s 12(b)(1) dismissal of a claim against Rep. Schiff on the grounds that the plaintiffs lacked standing. The plaintiffs alleged that Rep. Schiff’s letter to technology companies warning them of the dangers of publishing vaccine disinformation and his comments before a congressional committee that Congress might need to remove § 230 immunity caused several companies to deprioritize and disfavor information about vaccines from the Association. According to Judge Rogers’s opinion, the Association failed to plausibly allege an injury in fact. The Association pleaded that Rep. Schiff interfered with its “free negotiations” with the technology companies, but it never alleged that it actually tried to negotiation with them, nor did it allege that it had concrete plans to do so. The plaintiffs also asserted that their financial prospects and speech and associational interests were injured by the Association’s de-platforming. The Court rejected those arguments as well because the they did not adequately allege that those injuries were “fairly traceable” to Rep. Schiff’s actions. According to the Court, the plaintiffs offered “no causal link” between Rep. Schiff’s actions and the technology companies’ decision to de-platform the Association. Indeed, the Association alleged that the technology companies began addressing vaccine information before Rep. Schiff released his letters.

Rounding out Judge Rogers’s opinion-filled week, in Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela, she wrote for a panel that included Judges Walker and Edwards. They reversed the determination of the district court that it could exercise jurisdiction over the Republic of Venezuela in an action brought by a French plastics company to enforce a $42 million arbitration award that Venezuela failed to pay. The issue on appeal was whether the French company had followed the requirements for serving Venezuela set forth in the Foreign Sovereign Immunities Act. FSIA requires service to be made “by delivery of a copy of the summons and complaint in accordance with applicable international convention,” 28 U.S.C. §1608, in this case The Hague Convention, which requires signatory states like Venezuela to name a “Central Authority,” which must serve the documents as “prescribed by law.” Venezuelan law requires that service be made to its Attorney General. Saint-Gobain sent the documents to Venezuela’s Central Authority, which never served the Attorney General. The district court found that service on the Central Authority was enough to trigger personal jurisdiction, but the panel disagreed, explaining that FISA required Saint-Gobain to follow the Hague Convention and the Hague Convention required service according to Venezuelan law, which calls for service on the Attorney General. Because that didn’t happen service was not effective and the district court lacked jurisdiction over Venezuela. Saint-Gobain protested the unfairness of allowing Venezuela to escape service this way, but the Court pointed out that FISA permits service through diplomatic channels in “exceptional circumstances,” which Saint-Gobain never attempted. The Court remanded the case to the district with instructions for Saint-Gobain to try again. 

At issue in Cogentrix Energy Power Management, LLC v. FERC was whether a FERC-approved amendment to an ISO New England tariff that created “a new recovery mechanism for costs incurred by certain electric generation and transmission facilities to comply with mandatory reliability standards” permitted recovery of costs incurred before the effective date of the facility’s FPA § 205 filing. The Commission determined that they did not, and the D.C. Circuit agreed. In an opinion written by Judge Randolph and joined by Chief Judge Srinivasan and Judge Katsas, the panel rejected the petitioners’ efforts to characterize their attempt to recover their previous costs as something other than an “attempt[] to collect additional rates ‘for a service that had already been rendered.’” That is something the filed rate doctrine and the rule against retroactive ratemaking don’t allow. The Court determined that terms of the amendment to the ISO New England tariff preserve both bedrock principles, which are also incorporated into FPA § 219’s requirement that mandatory reliability costs be “just and reasonable.”

And finally, the Federal Labor Relations Authority hadn’t issued a Policy Statement in over thirty-five years before releasing a number of them in 2020. One of those Policy Statements announced for the first time that “zipper clauses,” which close off mid-term bargaining, are mandatory subjects that can be imposed upon a union by an impasses panel. In doing so, the Policy Statement reversed course from a 2019 Authority decision that refused to revisit a 2000 decision that had declared the issue an open question. In AFGE v. FLRA, Judge Nina Pillard, joined by Chief Judge Srinivasan and Judge Millett, granted the unions’ petition for review and vacated the Policy Statement because it lacked reasoned analysis. “The Authority’s errors include miscasting Supreme Court precedent, relying on conclusory assertions, and mischaracterizing its dramatic shift of the bargaining baseline. . . . The drive-by procedure and conclusory reasoning that produced the challenged Policy Statement is little match for the full process and detailed analysis that supported the Authority’s [2000 decision].”

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