Notice & Comment

D.C. Circuit Review – Reviewed: “Opinion for the Court filed by Circuit Judge Rao”

Neomi Rao’s rapid ascension from Notice & Comment blogger to head of OIRA to D.C. Circuit judge is now complete — this week, Judge Rao authored a published opinion for the Court.

Now she may be wondering what she has gotten herself into.

The case is District No. 1, Pacific Coast v. Liberty Maritime Corporation II and it concerns both “Garmon preemption” and Federal Rule of Civil Procedure 12(c). What’s Garmon preemption?* Well, this is how the D.C. Circuit described it a few years ago in District No. 1, Pacific Coast v. Liberty Maritime Corporation I:

Today, Judge Rao — joined by Judges Millett (with two tts) and Katsas — was able to explore the finer points of Garmon preemption. A labor union and shipping company disagreed about “whether Liberty was contractually required to hire MEBA employees on a new vessel managed by Liberty.” The union successfully sued, seeking to compel arbitration. The shipper believes that the district court had no jurisdiction under Garmon preemption. Who is right? The union, says the D.C. Circuit:

(There is a lot more going on regarding jurisdiction, including tension across the circuits; if your interest is piqued, give the full opinion a read. Note: I apologize that my screenshots appear in different sizes.)

But wait — there’s more! After establishing that jurisdiction exists, the panel turned to whether the district court was correct to compel arbitration. And here, the panel sent the case back because of Rule 12(c). Here is a sample of the analysis:

I think cases like this are fascinating. And I bet Judge Rao does too. But they are hard work.


The D.C. Circuit decided an important FCC case this week: United Keetoowah Band of Chero v. FCC.

The FCC won for a lot of issues in this case, which concerns “small cell” radio towers and 5G networks. Per Judge Pillard (joined by Judges Tatel and Edwards), for instance, the FCC prevailed as to changes to certain upfront fees, non-tribal consultation, and timelines. The FCC also adequately worked with the Tribes during the promulgation process. And an environmental challenger forfeited a NEPA argument. Even so, I doubt the FCC will count this case as a win. On the spectrum of hard-look review to thin-rationality review, the Court’s analysis is much more hard than thin.

Take it away, Judge Pillard:

There’s more, but you get the gist.

Finally, the Court released a redacted version of last week’s sealed opinion. Judge Tatel, joined by Judges Millett and Pillard, addressed three banks, “headquartered in China,” that “hold records that the United States government thinks may clarify how North Korea finances its nuclear weapons program.” The United States “procured subpoenas for those records” — including a subpoena “from the Attorney General under the Patriot Act (for the bank that has no U.S. branch).” The banks refused to comply and were in held in civil contempt. The D.C. Circuit affirmed, holding that:

(1) Personal Jurisdiction Exists:

(2) The Patriot Act Applies:

(3) There is No Comity Problem:

(4) The Contempt Order is Warranted:

Yep, the D.C. Circuit gets interesting cases. Judge Rao, brace yourself for an exciting career.

* Other than maybe a handful of folks who practice serious labor law for a living, anyone who says they know what Garmon preemption is off the top of their head is … lying!

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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