Notice & Comment

D.C. Circuit Review – Reviewed: O Christmas Tree!

This year my family did a crazy thing: We purchased the world’s largest Christmas Tree.* Well, that’s not true — some trees are a bit bigger. Even so, the Nielson Christmas Tree is pretty darn big. To be sure, we didn’t set out to buy Super-Humongous-Giant Tree™. Yet when we arrived at the lot, there was a tree so large that they couldn’t even stand it up! My children, for reasons unknown, gravitated to that tree. They wanted it. Badly. I patiently reasoned that a tree that large wouldn’t fit into our house; they were unpersuaded, countering that our ceiling is tall and that the tree could be wrapped up tightly and so squeezed through the door. I fretted that the tree would cost a fortune and that I would rather they go to college than enjoy a ginormous evergreen; the staff then said that I could name my price because the tree was taking up too much space on the lot. I pleaded with my little ones that this tree — which weighs hundreds of pounds — would be too heavy to lift; my children nudged extended family to help. With all of my arguments defeated, I surrendered. And so Super-Humongous-Giant Tree™ entered our home.

This tree is tall — probably close to 14 feet. This tree is heavy — if I had to ballpark it, I’d say about 300 pounds. This tree is wide — it is not a “Shawn Bradley” tree at all. We had to move significant pieces of furniture to even put it in the front room. We used ladders to put on ornaments, and a couple of times I was pretty sure that I was going to fall to my death. This towering timber “drinks” enough water to satisfy an entire Arizona cross-country team. In short, by any measure, this is an imposing hulk of hardwood (softwood, but there is no alliteration in that).

The first few times I saw the tree, I was stunned. How did that fit in my house? I would just gape. But then a funny thing started to happen. I got used to it. Sometimes now I rush by the tree without even giving it a moment’s thought. And last night, I even muttered, ‘ehh, it isn’t so big.’ Until someone comes to the door and gasps when they see Super-Humongous-Giant Tree™ for the first time, I almost never even think about it anymore.

That’s sad. But yet, I fear, all too common — and not just when it comes to Christmas Trees.

It is too easy to take wonders for granted. I love America (what an amazing country)! I love reading (we can access thousands of years of knowledge on our phones)! I love bacon cheeseburgers in December with fresh tomatoes and sautéed mushrooms — and with a side of kiwi if I really want it (and, really, it doesn’t cost all that much)! Obviously, there are still problems and we should not accept complacency, nor do I mean to minimize the reality that life can be hard. But it is important to not lose sight of remarkable things.

Consider the D.C. Circuit. I confess; sometimes I get bored reading the Court’s opinions. They start to blend into each other a bit. And obviously, the D.C. Circuit is not infallible, and no one should pretend that it is. Nonetheless, the D.C. Circuit is a remarkable institution. I recall a speech by Chief Justice Roberts, soon after he joined the Supreme Court:

I’m still on the court of appeals meeting with a judge from a foreign country and we’re talking through a translator and he asked the question, do you ever rule against the government? And I was a judge on the Court of Appeals for the District of Columbia Circuit, we ruled against the government three times before breakfast to just loosen up. And I told this — I didn’t say that — but I explained to him, yes I did, and he leaned forward and asked me a question and it had to be translated, but I could tell what he was asking and sure enough that’s what the translation was. He said, what happened? And that was an extraordinary question. And I gave the wrong answer. It was confusing. And I said, well, nothing happens. And he said, yes, that would be the case in our country as well. And I said, no, no, the government, of course, complied with the ruling of the Court.

This week, I was reminded how remarkable the D.C. Circuit can be.

Start with Starr International Company v. United States. This opinion — authored by Judge Edwards and joined by Judges Henderson and Millett — is about tax law. I’m sorry Andy Grewal and Dan Hemel, but tax law sometimes strikes me as … dull. To be clear, I understand why it is important — after all, “the power to tax involves the power to destroy.” But it can be a tad dry. Not this case though. Even leaving aside an interesting discussion of when and how the Administrative Procedure Act applies to tax issues (a big deal in the D.C. Circuit), the Court addressed the political question doctrine! Check it out and while you are at it, give the whole opinion a read:

Next, consider Matar v. TSA, also authored by Judge Edwards (this time joined by Judges Henderson and Srinivasan). To many, this opinion may come across as anticlimactic; the Court doesn’t resolve a due process issue involving a travel “watch list” because the challenge was filed too late. But justiciability is essential; federal courts, wisely, have limited powers:

In Bonacci v. TSA, Judge Edwards (again, he had a busy week) — joined by Judges Tatel and Ginsburg — addressed whether the TSA can subject commercial pilots and others “with privileged access to aircraft and secure areas of airports” to random screenings. The Court upheld the random screenings, but along the way, issued an interesting discussion of standing and timeliness, including this snippet about public notice:

In Feld v. Fireman’s Fund Insurance Company — yet another opinion from Judge Edwards, this time joined by Chief Judge Garland and Judge Griffith — the Court addressed a contract dispute over reasonable attorney’s fees. My first reaction is that this is a dull case. But you know what? I bet there is a 1L somewhere out there who is trying to figure out how contract law works in the context of summary judgment. This case isn’t a bad teacher.

Next, in Scahill v. District of Columbia, Judge Edwards finally let someone else write an opinion. Judge Rogers, joined by Chief Judge Garland and Judge Griffith, opened her opinion this way:

This case may not seem especially relevant to administrative law. But it is! There is a fascinating discussion in the middle of the opinion about “whether events subsequent to the filing of the original complaint can cure a jurisdictional defect.” Courts are divided — so advocates, watch out for the issue. Here is how the D.C. Circuit resolved it:

Given the split of authority (which Judge Rogers documents), this issue may end up before the Supreme Court.

Finally, we come to Blanton v. Office of the Comptroller. Judge Srinivasan, joined by Judges Tatel and Millett, addressed a “$10,000 civil money penalty.” Evidently, the Comptroller determined that an officer of a Georgia bank “engaged in unfair and unsound banking practices by allowing the bank to honor repeated overdrafts in the accounts of a frequent customer” and, separately, that he “caused the bank to file materially inaccurate reports concerning the bank’s financial condition.” The Court upheld the Comptroller’s determination as the overdrafts but not the financial reports. There is a lot going on, but here is a sample:

And here is the conclusion:

“It is elementary that an agency must adhere to its own rules and regulations.” What a sentence — and one that we should take a moment to appreciate, especially if it has become familiar. The wonderful notion that courts require agencies to follow their own rules is a Super-Humongous-Giant Tree™ kind of idea.

* Enjoy.

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