Notice & Comment

D.C. Circuit Review – Reviewed: Planes, Trains, and Arbitration Clauses – D.C. Circuit Publishes Six Opinions to Ring in the New Year

Last week the D.C. Circuit published six opinions in an early celebration of the new year. The FAA, Amtrak, and arbitration clauses all made appearances in a set of fact-bound opinions with few precedential highlights. I’ve read them all so you don’t have to. 

For readers of this blog, last week’s highlights included administrative law decisions in AT&T Services v. FCC, Newman v. FERC, and Erwin v. FAA

In AT&T Services, Judge Tatel wrote an opinion joined by Judges Millett and Walker, in which the court held that the FCC had run afoul of “[f]undamental and longstanding principles of administrative law” when it opened a band of radiofrequency spectrum to unlicensed devices such as smartphones and tablets. Much in the FCC’s order passed muster as the sort of “highly technical determination” that a reviewing court typically leaves for the agency to make. But the FCC did not adequately respond to concerns raised by radio and television broadcasters about inference with licensed users, citing a study that did not address the specific complaints of these broadcasters. It’s not clear how long the broadcasters’ victory will last. The court remanded but did not vacate the FCC’s order because it found that both Allied-Signal factors favored the agency. 

FERC wasn’t so lucky in Newman v. FERC. In that case, pro se litigants successfully petitioned for review of FERC orders approving formula rates filed by the Potomac-Appalachian Transmission Highline (PATH). FERC allowed PATH to pass through money it spent on public relations and advocacy designed to influence public officials. In an opinion by Judge Pillard, joined by Chief Judge Srinivasan and Senior Judge Randolph, the court concluded that these expenditures should have been excluded from the formula rate under FERC’s own regulation. The agency’s contrary conclusion was based upon an interpretation “plainly inconsistent” with the regulation. Thus, the court did not have to address the much-debated question of deference to an agency’s interpretation of its own ambiguous regulations, a topic about which my fellow Notice & Comment bloggers have had something to say.

Last week was not a great one for federal agencies at the D.C. Circuit, as yet another agency’s order fell in Erwin v. FAA. In that case, Judge Henderson wrote an opinion, joined by Judges Tatel and Wilkins, in which the court held that the FAA did not adequately explain its decision to withdraw an airline pilot’s certification to fly. The FAA argued that it “need not ‘author an essay’” to explain its decision. Maybe not, but it needed to provide at least some explanation of its decision, which, the court concluded, the agency had failed altogether to do. “[T]he FAA is a repeat offender” was the most memorable line from last week’s opinions, and is sure to appear in a future brief challenging an FAA order.

Two of last week’s opinions involved arbitration. In Tatneft v. Ukraine, the court issued a narrow, fact-based set of holdings about arbitral procedure and ethics. The opinion, penned by Judge Henderson, was joined by Chief Judge Srinivasan and Senior Judge Edwards. Its precedential highlight was the court’s rejection of Ukraine’s argument that circuit precedent concerning forum non conveniens doctrine was inconsistent with the Supreme Court’s opinion in Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.  In particular, the court reaffirmed its precedent against the invocation of forum non conveniens in proceedings to confirm foreign arbitral awards when a party aims to attach assets located in the U.S. The second arbitration-related opinion was Weissman v. Nat’l R.R. Passenger Corp., which involved a challenge to an Amtrak term of service requiring passengers to arbitrate disputes with Amtrak. In an opinion for the court joined by Judge Jackson and Senior Judge Silberman, Judge Rogers held that the challengers lacked Article III standing because they were not injured in fact by Amtrak’s mere adoption of the policy. They “had ‘no claim to arbitrate,’” as the district court put it. Judge Rogers’ opinion and Judge Silberman’s concurring opinion are worth reading for their discussion (and rejection) of the challengers’ theory that they were injured by Amtrak’s term of service in the same way that a consumer is injured when a government action makes a desired product unavailable.  

Last week’s remaining opinion, United States v. Orange, held that a criminal defendant’s ineffective assistance of counsel claim failed because he had not shown a reasonable probability that he would have received a shorter sentence with an effective attorney. In an opinion by Judge Rao, joined by Judge Katsas and Senior Judge Silberman, the court concluded that “an incorrect [Sentencing] Guidelines range will not suffice to demonstrate prejudice” under Strickland v. Washington and Molina-Martinez v. United States when the sentencing court offers an explanation that the sentence was appropriate regardless of the Guidelines range. 

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