Notice & Comment

D.C. Circuit Review – Reviewed: “One of the Most Difficult Issues that Could Confront a Decisionmaker”

This week was even crazier than last week. Who would have thought a year ago that we’d be wondering today how many people can lawfully be in a room together? That question now matters a great deal to the Nielsons, however, because my little brother is scheduled to be married tomorrow.* All the while, my children have enjoyed tolerated survived a week of isolation. Oh, yeah, there also was an earthquake.

This week’s craziness brings to mind Justice Rehnquist’s observation that administrative law presents “what has to be one of the most difficult issues that could confront a decisionmaker: whether the statistical possibility of future deaths should ever be disregarded in light of the economic costs of preventing those deaths.”  Too much prevention leads to economic stagnation which leads to death.  Yet obviously, too little prevention also leads to death.  With the risk of death all around us, the question is how to strike the optimal balance.  

That is a sobering thought that we are now seeing play out in real time.  This may sound preachy, but here goes:  Now would be a good time to pray for decisionmakers at the local, state, and federal level who are making life-and-death choices in a time of great uncertainty.  


The D.C. Circuit — which now has a page dedicated to the pandemic and which today dealt with a logistical “mess” regarding remote oral argument — decided two cases this week.  

The first is Camara v. Mastro’s Restautants LLC.   Judge Randolph, joined by Judges Henderson and Rao, addressed the claim of a former server at Mastro’s Steakhouse.  Did this server agree to arbitrate his claims? The restaurant doesn’t have a copy of a signed agreement but offered other evidence — including a computer report — suggesting that he did agree.   But the server says he didn’t sign.  Is the restaurant entitled to summary judgment? Mastro’s relied on Carter v. George Washington University, 180 F. Supp. 2d 97 (D.D.C. 2001), which states that “self-serving affidavits alone will not protect the non-moving party from summary judgment.”  The D.C. Circuit rejected that proposition:  

The second case is Union Pacific Railroad Co. v. Pipeline & Hazardous Materials Safety Administration. Judge Williams — joined by Judge Garland — authored the majority opinion and Judge Henderson dissented. This case concerns the FAST Act, which governs disclosures made by railroads transporting hazardous materials. These disclosures assist state and local responders prepare for emergencies. The FAST Act also requires measures to prevent unauthorized persons from viewing this information.

Union Pacific claims that the confidentiality protections in the agency’s rules are inadequate because some states release such information under state freedom of information laws—thus allowing competitors to access the information. The Court rejected this challenge. Here is language that may be quoted in future cases:

Also this:

Judge Henderson dissented — vigorously.

And this:

Not a bad zinger.

And with that, do your best to enjoy the weekend … in small groups.   

* The number of folks at the wedding will now be ten. I didn’t make the cut!

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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