Notice & Comment

D.C. Circuit Review – Reviewed: SCOTUS

The Supreme Court reverses every circuit from time to time. It comes with the territory.

Why do I mention it? Because the Supreme Court this week repeatedly disagreed with the D.C. Circuit’s procedural decisions regarding executions. The Supreme Court — in a series of late night, divided orders — vacated stays from the DDC. But the D.C. Circuit also issued a number of orders in these cases. The Supreme Court was not persuaded.*

These last few weeks have illustrated the divide between the D.C. Circuit and the Supreme Court. Then-Judge Kavanaugh dissented a lot on the D.C. Circuit; he rarely dissents now. We thus should not be surprised when the two courts diverge — which they seem to be doing a lot lately.

The D.C. Circuit decided a slew of cases this week

In Grace v. Barr, Judge Tatel (joined by Judge Griffith) addressed challenges to “a host of executive-branch policies adopted to implement the expedited-removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).” The policies broadly concern “how asylum officers determine whether an alien has demonstrated a ‘credible fear’ of persecution, a threshold showing that permits an alien who would otherwise be immediately deported to seek asylum in the United States.” The Court largely sided against the government. There is a lot here, including jurisdiction stripping. Here is a taste: “That provision, however, forbids review of individual aliens’ credible-fear determinations, not suits like this that challenge credible-fear policies on their face.” The Court also addressed the authority of an agency to make policy through adjudication: “[W]e have often recognized that agencies can and do announce new policies in adjudications. … Were this sufficient to remove the decision from section 1252(e)(3)’s scope, moreover, then the Attorney General could immunize credible-fear policies from judicial review by simply announcing them in section 1229a adjudications. Such a result would conflict with section 1252(e)(3)’s purpose …..” Moreover, “circuit precedent requires that we ‘adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.” On the merits, the Court rejected much (but not all) of the new policy. Judge Henderson dissented — vigorously. For what it is worth, I wouldn’t be surprised to see a cert petition.

In State of New York v. EPA, Judge Millet (joined by Chief Judge Srinivasan and Judge Griffith) vacated an EPA decision to deny New York’s petition regarding several power-generating facilities in other states under the Good Neighbor Provision of the Clean Air Act (CAA). The Court held the EPA acted arbitrarily and capriciously by (1) not adequately explaining itself and (2) concluding that New York had no air quality problem (for complicated reasons explained in the opinion). Judge Griffith wrote separately to observe that New York’s petition was inconsistent with the CAA’s design for a reason not addressed by the agency — because it targeted multiple sources without a unifying characteristic. “[I]n a future case, EPA may decide to enforce the textual and structural restrictions on the scope of a section 126 petition. Prospective petitioners should act accordingly.”

In American Hospital Association v. Azar, Chief Judge Srinivasan (joined by Judges Garland and Millett) addressed Medicare reimbursement rates for some outpatient care offered at off-campus provider-based departments (PBDs). The Chief Judge noted that “because off-campus PBDs are considered hospitals for regulatory purposes, they were paid a higher rate applicable to hospitals instead of a lower rate applicable to physician practices. The result was that, for the same outpatient service, off-campus PBDs obtained up to twice as much per patient in Medicare reimbursements as did physician practices.” HHS changed that policy and the D.C. Circuit affirmed. If this is your field, read the whole decision. The most interesting part of the case for me, however, is this:

It looks like Chevron Waiver is still dead in the D.C. Circuit.

In Association for Community Affiliated Plans v. Department of the Treasury, Judge Griffith (joined by Judge Katsas) addressed “short-term limited duration insurance” (STLDI). Before the Affordable Care Act, various agencies “defined STLDI as plans with an initial contract term of less than one year.” The ACA did not change that definition, allowing “insurers to sell STLDI plans to healthy individuals at a discount without complying with certain of the statute’s pricing and coverage rules.” In 2016, the Obama Administration capped STLDI plans at three months to keep healthier folks in the risk pool. “But over the next two years, premiums for ACA-compliant plans continued to soar while enrollment dropped off. The Departments reversed course with the goal of increasing the availability of more affordable insurance.” The D.C. Circuit upheld that change over Judge Rogers’s dissent — although noting that a future administration might change paths:

(If you’re interested in zigzagging regulations, I have an article for you.)

In Strike 3 Holdings, LLC v. John Doe, Judge Rao (joined by Judges Millet and Edwards) held the district court abused its discretion when it denied a discovery motion filed by Strike 3 Holdings — an adult film distributor — that would have allowed it to subpoena Comcast to identify an unknown defendant accused of copyright infringement. Rao concluded that the district court erred by (1) treating Strike 3’s pornography as relevant; (2) concluding that Strike 3 would have no chance of surviving a Rule 12(b)(6) motion; and (3) taking judicial notice of Strike 3’s litigation pattern to infer that Strike 3 seeks hasty settlements rather than successful litigation.

In Imapizza, LLC v. At Pizza Limited, Judge Ginsburg (joined by Judges Rogers and Tatel) addressed a lawsuit between two pizza companies that tested “the limits of the extraterritorial application of the Copyright and Lanham Acts.” IMAPizza, the parent company of a D.C. pizza chain, &pizza, filed a suit alleging that Scotland-based pizza company, @pizza, was an “unauthorized copycat version of its stores.” Here is the conclusion:

Finally, in Jeffries v. Barr, Judge Wilkins (joined by Judge Rao) upheld in part dismissal of a discrimination claim. Judge Pillard dissented in part because, in her view, the court should have sent the entire case back to the district court for appropriate discovery. If this paragraph interests you, read the entire opinion:

* Today (well, the order says it was filed today, but the ECF number says yesterday), the D.C. Circuit denied a stay. Unless I’m missing it, it doesn’t appear that Supreme Court review was sought.

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