Notice & Comment

D.C. Circuit Review – Reviewed: On the Outside Looking In

I started D.C. Circuit Review — Reviewed in 2015 because I’m an “admin law” person and the D.C. Circuit is the nation’s home for administrative law litigation. As I explained in a post about whether the D.C. Circuit truly is the nation’s “second most important court”:

Increasingly, however, it feels like the D.C. Circuit’s outsized role in administrative law is becoming less so. There are obvious reasons for this. For one, the Supreme Court itself has become active in administrative law. For another, the Fifth Circuit is viewed as more hospitable to challenges to agency action. Likewise, my sense is that judges on other courts — perhaps driven by the Supreme Court’s activity — increasingly view the D.C. Circuit as out-of-step with where administrative law is today and where it is heading. The D.C. Circuit is pro-Chevron, for example; the Supreme Court is less so. On the D.C. Circuit, then-Judge Kavanaugh was often in dissent on major separation-of-powers issues. On the Supreme Court, Justice Kavanaugh is rarely in dissent.

I was reminded of this trend this week when I read Illumina Inc.’s motion to expedite in its litigation with the FTC surrounding Illumina’s acquisition of Grail, Inc.* Unsurprisingly, this case was filed in the Fifth Circuit. Here is a taste of just the separation-of-powers issues that some very high-powered lawyers intend to pursue:

And this:

This structural challenge to the FTC should not be a surprise after Seila Law and Collins. But it is notable that it will not be heard in the D.C. Circuit. Indeed, it seems safe to say unless the lottery balls bounce in the D.C. Circuit’s favor or there is some special reason sounding in venue or exclusive jurisdiction, the D.C. Circuit isn’t going to be deciding as many major “admin law” cases.

That is not to say, however, that the D.C. Circuit still does not get more than its fair share of interesting disputes. This week’s case that has drawn the most attention is United States v. Fischer, a criminal case (which is rare for the D.C. Circuit) about the meaning of “corruptly.” Here is Politico’s introduction:

Fischer is a long opinion — with the lead opinion by Judge Pan, an opinion concurring in the judgment by Judge Walker that may be the controlling one on a key issue, and a dissent by Judge Katsas. If you practice criminal law, definitely read all of Fischer. If you focus on appeals more generally, this snippet from Judge Walker’s opinion should catch you attention:

Suffice it to say, Judge Pan does not agree with Judge Walker about Marks. And suffice it to say further, this is not the last time that you’ll hear about Fischer. But because Notice & Comment is focused on administrative law, let’s move to the next case, which has an unusually interesting caption:

Yes, this is a case of United States v. United States.

Here is what then-Judge Kavanaugh said about such cases:

(Kavanaugh accepted such suits because of Humphrey’s Executor — which is another reason to pay attention to the Illumina litigation, which may take direct aim at Humphrey’s Executor.)

Even apart from its caption, Westfall is interesting. The facts are complicated, but for the Court, Judge Edwards (joined by Judges Pillard and Pan) concluded that the Commission erred as follows: