Notice & Comment

D.C. Circuit Review – Reviewed: Rejection

No one likes being rejected.

Many years ago, during my 1L summer, I was introduced to a partner at a law firm. For fluky reasons, we had time for a long conversation. At the end of it, this partner — sua sponte, I stress — gave me his card and said something like this: “During recruiting season, don’t go through the regular on-campus interview process. Instead, call me directly.” I was intrigued. When the time came, I did what this partner said. Soon after, I received a message telling me to come meet with the firm’s representatives. “Interesting,” I thought. So I showed up at the appointed hour and the “special” interview began. Just a few minutes into it, however, I was told outright that I wasn’t going to get the job! I thought that was strange, but whatever: I probably wouldn’t have gone to that firm anyway. Later, however, something even stranger happened. Out of the blue, the firm emailed to ask if I’d like to chat with them again. I figured there was no harm in chatting. Yet this time, the firm did not even set up a meeting. Instead, it sent a form letter thanking me for my interest but letting me know that I had not been selected. To make myself feel better, I like to think that this firm rejects everyone two times.

Why do I bring this up now? Because the lonely period between February and March is almost always one of rejection. If you are a law professor, when does your draft article get rejected (and rejected and rejected and rejected) by 2Ls across the country? Yep — February to March. If you are a college basketball fan, when does all hope vanish? Again, for almost everyone, mid-February to early March is a dark time. Rejection is everywhere.

True to form, the D.C. Circuit this week was also heavy on rejection.*

First, consider the obvious rejection cases — United States v. Ausby (per curiam decision from Judges Henderson, Srinivasan, and Millett, ruling in favor of a prisoner); Montrois v. United States (per Judge Srinivasan, joined by Chief Judge Garland and Judge Millett, upholding an IRS program to charge fees to tax preparers); and National Parks Conservation Association v. Semonite (per Judge Tatel, joined by Chief Judge Garland and Judge Millet, requiring the U.S. Army Corps of Engineers to prepare an environmental impact statement for “electrical transmission towers across the historic James River, from whose waters Captain John Smith explored the New World”). In each of these cases, the D.C. Circuit rejected reversed the district court’s decision. For those who litigate environmental cases, National Parks Conservation Association merits a close read. (My thought: It’s not the Court’s fault, but “highly controversial” — one of the triggers for an environmental impact statement — sure seems like a pretty mushy standard.) And for those at the intersection of tax and administrative law, Montrois is also definitely worth a look. The Ausby case is interesting too because it isn’t the sort of case that the D.C. Circuit often sees. Relevant to this week’s theme, however, there is a lot of rejection in these cases, especially for the district court. That said, these district judges may enjoy a bit of schadenfreude. After all, this week, the Supreme Court — in a 7-1 decision — gave the D.C. Circuit some of its own medicine. The lesson? Being reversed sometimes just comes with the territory.

The other cases, however, are also rejection-heavy. In United States v. Leyva, the panel (Judge Ginsburg, joined by Judges Rogers and Srinivasan) concluded that “[t]he district court … did not abuse its discretion in denying Leyva’s motion to withdraw his guilty plea. The appellant’s various objections to his sentence and the forfeiture imposed by the court are unavailing ….” Of note, the Court rejected a de novo standard — as well as a clear error standard — for review of “a district court’s evaluation of the reliability of hearsay evidence at sentencing.” Instead, the standard is for abuse of discretion. It looks like there may be a circuit split on this issue. Similarly, in Barbosa v. DHS, Judge Silberman (joined by Judges Katsas and Williams) rejected the argument that the Court has jurisdiction to determine whether the Federal Emergency Management Agency failed to adequately provide criteria for storm damages payments. The Court expressed sympathy for the idea that there should not be “secret law,” but concluded that there was enough guidance.

And then we come to the two biggest cases: In re Grand Jury Investigation and United States v. AT&T. Both of these cases are about rejection too.

In Grand Jury Investigation, the Court (per Judge Rogers, joined by Judges Henderson and Srinivasan) rejected an Appointments Clause challenge to Special Counsel Mueller’s appointment. The Special Counsel, the Court reasoned, is an inferior officer because the Attorney General can rescind the regulations or the appointment order protecting Mueller’s independence. But there is more rejection in this case than just that. For instance, the Court did not really address the multi-factor test from Morrison v. Olson. Instead, the Court’s analysis springs from Edmond v. United States. Does that mean the Court implicitly rejected Morrison? Perhaps the D.C. Circuit agrees with Justice Thomas that “it is difficult to see how Morrison’s nebulous approach survived our opinion in Edmond.” Or perhaps the Court simply did not think it was necessary to wade into this issue. Either way, it is interesting.

And finally, in AT&T, the Court (per Judge Rogers again, this time joined by Judges Wilkins and Sentelle) rejected a theory of vertical anticompetitive effects. The panel concluded that although the district court may have made “problematic statements,” overall it properly exercised its discretion when it denied injunctive relief and allowed the merger of AT&T and Time Warner to proceed. Notably, “unlike horizontal mergers, the government cannot use a short cut to establish a presumption of anticompetitive effect through statistics about the change in market concentration, because vertical mergers produce no immediate change in the relevant market share.” If you are an antitrust person, you have to read this opinion. There is a lot of interesting discussion about a lot of interesting things, including “John F. Nash, Jr., The Bargaining Problem, 18 Econometrica 155 (1950),” and “the principle of corporate-wide profit maximization.” The takeaway? It’s hard to win a vertical challenge, and it’s especially hard to do so when the standard of review is for clear error and abuse of discretion.

At this point, no doubt some of you are thinking, “Hmmm — pretty weak post, Nielson; in every opinion, the D.C. Circuit necessarily rejects something.” And, to be fair, that’s true. So if that’s your view, maybe you should toss this post aside. Frankly, it wouldn’t be the first time I’ve felt the sting of rejection. 😉

* With the exception, of course, of Neomi Rao; following her approval by the Judiciary Committee, the Court may soon be at full strength again. Another exception to this week’s pattern of rejection is Judge Pillard; in reversing the D.C. Circuit, the Supreme Court went out of its way to note that “Judge Pillard wrote separately to say that she would have decided the question differently were she writing on a clean slate.”

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