Notice & Comment

D. C. Circuit Review: Reviewed — Read Judge Tatel’s memoir!

My former colleague and good friend Judge David Tatel  has been in the headlines of late with the release of his memoir, Vision: A Memoir of Blindness and Justice. The articles about the book that I have read have, predictably, focused on Judge Tatel’s criticism of the Roberts Court. See, e.g., Ann Marimow’s article in the Washington Post,, and Joan Biskupic’s for CNN, But in my view, Judge Tatel’s book is a must-read for far more important reasons than this criticism, which, by the way, is a criticism I don’t share with my friend.  That’s a discussion for another day. Judge Tatel’s book will be assigned reading in the class I teach on The Role of an Article III Judge because of the valuable insights it offers from a person who has led an extraordinary life worthy of emulation. David Tatel exemplifies love of family, love of country, and a dogged insistence that the promise of liberty and equality be extended to all. Years ago, a law clerk of mine had an unexpected opportunity to clerk for Judge Tatel following his year with me. Several people counseled him against a second clerkship especially with a “progressive” judge. (I’ve already described in this blog why I think Judge Tatel is actually the model of a judicial conservative.) I urged my clerk to join Judge Tatel’s chambers for the simple reason that he shouldn’t miss the chance to spend a year in close quarters with a truly great human being. Fortunately, the clerk followed my counsel.

As those familiar with the work of the D. C. Circuit know, oral arguments are rare during the summer months, and judges are not allowed to hear cases in September unless they have published almost all of their opinions from the previous term. Which means that May, June, and July are pressure-filled months in chambers as judges and clerks press to get opinions out the door. The D. C. Circuit issued seven opinions last week. I’ll mention two only in passing: Palmer v. FAA, No. 23-1239, an unsuccessful “substantial evidence” challenge to the FAA’s suspension of a pilot’s certificate for flying a plane too low, and Schacht v. Lieberman, No. 22-5221, an unsuccessful “arbitrary and capricious” challenge to the Veteran Administration’s termination of a physician at a VA hospital.

In Medical Imaging & Technology Alliance v. Library of Congress, No. 23-5067, the D.C. Circuit held that copyright rules promulgated by the Register of Copyrights and approved by the Librarian of Congress under the Digital Millenium Copyright Act (“DMCA”) are reviewable under the Administrative Procedure Act (“APA”). The APA provides a right of review and waiver of sovereign immunity for claims against “agenc[ies]” and “officer[s]” of the United States.  5 U.S.C. § 704.  Prior Circuit precedent established that the Library of Congress (of which the U.S. Copyright Office, headed by the Register, is a part) is not an “agency” under the APA. Distinguishing those precedents, Judge Rao, joined by Senior Judge Edwards, relied on a provision from the Copyright Act in Title 17 of the U.S. Code. Under the Copyright Act, “all actions taken by the Register of Copyrights under this title are subject to” the APA, and all regulations promulgated by the Register must be approved by the Librarian. 17 U.S.C. §§ 701(e), 702. Putting the two provisions together, the court held that DMCA rules promulgated under Title 17 are subject to APA review and that Congress has waived the Library’s sovereign immunity for challenges to those rules. That is so even if the Library is not subject to suit under the APA in other contexts. Judge Childs dissented.  She disagreed that the Copyright Act provision provided the requisite clear and unequivocal waiver of sovereign immunity necessary to subject the Library to suit when, by its terms, the provision only states that the Register’s actions are subject to the APA.

National Security Archive v. Central Intelligence Agency, No. 23-5017, addressed whether the Central Intelligence Agency (“CIA”) waived its right to assert an exemption to a Freedom of Information Act (“FOIA”) request. The National Security Archive requested a 1989 report written by an Air Force Lieutenant General regarding a military course of action taken during the Cold War. The CIA resisted the request, claiming that multiple exemptions under the FOIA applied, which the Archive did not dispute. The Archive, however, argued that the CIA had waived its right to assert the exemptions under the official-acknowledgement and public-domain doctrines. In an opinion by Judge Childs, and joined by Judge Rao and Senior Judge Ginsburg, the D.C. Circuit held that there was no waiver. After assuring itself that the Archive had standing, the court explained that the public-domain doctrine requires (among other things) that the resisting agency has already made the sought-after information public. Although the Department of State had published part of the 1989 report, one federal agency cannot waive another federal agency’s right to claim a FOIA exemption. The court then clarified that the public-domain doctrine is not “separate and distinct” from the official-acknowledgement doctrine.  Rather, the court has used the two terms interchangeably. So, this argument from the Archive was unsuccessful as well.

The Federal Service Labor-Management Relations Statute provides that if a federal agency or union fails to negotiate in good faith in collective bargaining, it commits an unfair labor practice (“ULP”). The statute also establishes a Federal Service Impasses Panel (“Panel”) within the Federal Labor Relations Authority (“FLRA”) to assist in resolving impasses in collective bargaining negotiations. It also allows ULP claims to be sent to binding arbitration. Federal Education Association Stateside Region v. FLRA, No. 22-1220 concerned collective bargaining negotiations between FEA-SR, a teachers’ union and the Department of Defense, Domestic Dependent Elementary and Secondary Schools (“DDESS”). The union petitioned for review of an FLRA decision upholding an arbitration award on the ground that the arbitrator lacked authority to review a Panel order. In an opinion written by Judge Henderson and joined by Judge Rao and Senior Judge Edwards, the court affirmed. The court concluded that the arbitrator lacked authority to review the Panel’s order because 5 U.S.C. § 7119 allows an arbitrator to review Panel decisions only when the legality of that decision is raised as a defense to a claim of ULP for noncompliance with the order, which was not the case here.  

A class of Afghan and Iraqi individuals who were faithful in their service to the United States are still waiting on their special-immigration visas they applied for in 2018 under the Refugee Crisis in Iraq Act of 2007 (“RCIA”) or Afghan Allies Protection Act of 2009 (“AAPA”), despite Congress passing legislation that the government “shall” improve its efficiency so that it “should” process the applications within nine months. In Afghan and Iraqi Allies v. Blinken, No. 23-5025, Judge Katsas writing for the Court, along with Chief Judge Srinivasan and Judge Pillard, affirmed the district court’s refusal to terminate a 2020 court approved plan requiring prompt adjudication of class members’ applications. In May 2022, the government moved for relief from the 2020 adjudication plan citing a surge in visa applications and various global events, including the US withdrawal from Afghanistan and the war in Ukraine. The district court analyzed the issue under the six TRAC factors to determine whether agency inaction was unreasonable, and finding that it was, refused to terminate the adjudication plan. The question before the D.C. Circuit was whether the district court was legally compelled to terminate the 2020 adjudication plan for RCIA and AAPI individuals whose visa applications had been pending for more than nine months since May 21, 2020. The D.C. Circuit considered only whether the district court reasonably responded to changed circumstances between 2020 and 2022. As a practical matter, the Court stated that if a delay in the adjudications were already unreasonable when the injunction and plan was entered in 2020, it is difficult to see how changed circumstances would make those delays not unreasonable two years later. Ultimately, upon finding the district court reasonably responded to changed circumstances based on the updated TRAC analysis, the Court held some continued judicial involvement is appropriate.

A Capitol Hill rioter who was charged and pled guilty to assaulting law enforcement officers in violation of 18 U.S.C. § 111(a)(1) sought to appeal his sentence in US v. Sargent, No. 23-3005, by arguing Sentencing Guidelines commentary is not entitled to deference under Kisor v. Wilkie. Sargent argued that the district court should have used § 2A2.2 of the Sentencing Guidelines because that guideline was more applicable to his conduct than § 2A2.4. The D.C. Circuit resolved the case on a narrower question than initially presented to the Court—whether the term “aggravated assault” in the § 2A2.2 guideline text unambiguously applies to Sargent’s conduct. Judge Wilkins, along with Judges Millet and Garcia, determined that the plain meaning of “aggravated assault,” according to the Sentencing Guidelines’ text, structure, and context encompassed Sargent’s conduct, affirming the district court’s use of Sentencing Guideline § 2A2.4 for Sargent’s Section 111 violation.

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