Notice & Comment

D.C. Circuit Review – Reviewed: Should There Be A Year Four?

I started writing D.C. Circuit Review–Reviewed in August of 2015. Each August since 2015, I have asked myself whether it is worthwhile to keep going for another year. So far, my answer has always been, “Sure, why not?” But this year I’m wavering. There are downsides to these posts; they take a lot of time, especially during the summer when the D.C. Circuit issues scores of opinions. Given that volume, it is challenging to even read the opinions, much less do them justice. And, frankly, reading them isn’t as interesting as it used to be, especially as I’ve come to more fully appreciate how hard it is to assess the Court’s handiwork without a deep dive into the briefs, the precedent cited, and sometimes the case’s history — which I rarely have time to do. Finally, I am now redundant. The good folks over at D.C. Circuit Breaker have come onto the scene, and they do a great job with the cases. Hence, like the Dread Pirate Roberts, I’m tempted to turn over this gig to someone else and sail off into (blogging) retirement.

It is not all bad, of course. Reading cases forces me to focus on what is happening in the real world — and many D.C. Circuit opinions are fun to read. Likewise, although some of my posts are admittedly pretty lackluster, I hope that not all of them are. It is also exciting to meet appellate superstars. This counsels in favor of staying the course. Yet opportunity costs are real.

After a lot of thinking, my plan is to keep plugging away, but with posts that are more focused on administrative law and separation-of-powers cases, where I hope I can add some value. We’ll see if this approach works. If not, well, then maybe I won’t make it to Year Four!


The most important case, by far, this week is Air Alliance Houston v. EPA. There are three pages — yes, three full pages — of lawyers involved, including two massive coalition of contending states. The per curiam panel (Judges Rogers and Wilkins, with Kavanaugh sitting it out) issued this decision:

This opinion should be read alongside Clean Air Council v. Pruitt from last year. It is not a secret that the Trump Administration differs from the Obama Administration on many issues. The Trump Administration has delayed some decisions while it goes through the process of revisiting them. This is not unprecedented — indeed, “it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration.” But are such efforts lawful? Well, it depends. The en banc D.C. Circuit, for instance, has frozen the Clean Power Plan litigation. But courts do not always say that such efforts are lawful. In Clean Air Council, for instance, the Court (over Judge Janice Rogers Brown’s dissent) ruled against the agency, and Air Alliance Houston reiterates that point.

Jonathan Adler has more on this case over at Volokh; I’m sure others will have more to say too. As a personal aside, however, I want to echo one of Adler’s points. The Senate should confirm Jeff Clark to be Assistant Attorney General for the Environment and Natural Resources Division. I’ve seen Jeff Clark in action. He understands environmental law as well as anyone alive, takes his work very seriously, and has sound judgment.*

Next, Qassim v. Trump. The Court decided not to hear a Guantanamo Bay petition en banc in the first instance. Judges Rogers and Tatel, however, wrote separately to express some discomfort with how the Court has addressed post-Boumediene v. Bush cases. This may be one to watch, especially because the author of Latif v. Obama (Judge Brown) — the case that is the main target of Tatel’s criticism — is no longer on the Court. That said, none of the new judges joined either of these opinions. Interesting.

American Freedom Defense Initiative v. WMATA is a First Amendment case involving a challenge to WMATA’s advertising policy. Judge Ginsburg — joined by Judge Srinivasan — addressed these facts:

WMATA does not want to run “issue-oriented advertising.” It had a “Moratorium” against them, and, indeed, responded to this litigation by further changing its policy:


The panel concluded that the case was not mooted by repeal of the Moratorium — Judge Henderson dissented, and made some fair points — because “the Guidelines are in effect a particularization and finalization of the temporary Moratorium. It is not quite correct to say WMATA has ceased the challenged conduct; instead, WMATA has renewed the challenged conduct in a new form.” And on the merits, it held that this is a “nonpublic forum” and that these “restrictions are viewpoint-neutral” but remanded “to the district court the question whether the restrictions are reasonable, which that court should reexamine in light of Minnesota Voters Alliance v. Mansky.” In particular:

In American Institute of Certified Public Accountants v. IRS, Judge Ginsburg (this time joined by Judge Rogers) held that AICPA has standing to challenge “a voluntary scheme known as the Annual Filing Season Program” because, in part, it “expands the supervisory responsibilities of members of the AICPA.” Yet on the merits, the Court held that the Program was not “a legislative rule [subject to] notice and comment rulemaking pursuant to the APA” because, in part, it “does [not] impose any new or different requirement upon supervisors or unenrolled agents.” Instead, the Court concluded that the IRS has simply issued an “interpretive rule.” Judge Griffith dissented on that point: “[S]upervisors — who do not affirmatively choose to participate in the Program … can be subject to discipline as severe as monetary penalties.” He also included this paragraph:

(I’ll be candid; this is the type of case that tempts me to retire from D.C. Circuit Review–Reviewed. It deserves a lot more attention than I can give it. The test for interpretative rules is important and tricky and the back-and-forth between the majority and dissent is worth your time.)

In Green Gas Delaware Statutory Trust v. Commissioner of IRS, Chief Judge Garland (joined by Judges Tatel and Millett) opened his opinions this way:

I love the double “So” in that opening paragraph. The tax analysis, however, I will leave for someone else. (Again, apologies.)

In ABC Aerolineas, S.A. de C.V. v. DOT, Chief Judge Garland (this time joined by Judges Silberman and Sentelle) denied Interjet’s petition to review DOT’s decision that barred Delta and Aeromexico from divesting “takeoff and landing slots at Mexico City’s Benito Juárez International Airport” to Interjet as a condition of approving a “cooperation agreement” between them. The Court determined that DOT “does not, and cannot, allocate slots at MEX” but can “condition[] its discretionary grant of antitrust immunity on the Joint Applicants’ divestiture of certain assets” and that the “conditions DOT imposed were consistent with the pro-competition interests expressly set forth” in the statute. After all, “Interjet already had more than 300 slots at that airport.” (Ditto.)

In Hispanic Affairs Project v. Acosta, Judge Millett (joined by Chief Judge Garland and Judge Srinivasan) issued a lengthy opinion about — wait for it — herding sheep. Here is the gist of it:

(Ditto. This one is really frustrating. Look at footnote 4; in a perfect world, I could explore when courts can rely on declarations not found in the administrative record. But not when summarizing this many cases.)

Finally, the Court decided a number of other cases. In Ranowsky v. National Railroad Passenger Corporation, Judge Pillard (joined by Chief Judge Garland and Judge Sentelle) affirmed the district court’s grant of summary judgment in favor of the employer in a discrimination case. In United States v. Machado-Erazo, Judge Wilkins (joined by Judges Rogers and Katsas) affirmed very serious criminal convictions; Judge Rogers concurred to discuss “the relationship between the district court’s ‘gatekeeping’ obligation under Federal Rule of Evidence 702 and the government’s disclosure obligations upon defense request under Federal Rule of Criminal Procedure 16(a)(1)(G).” In People for the Ethical Treatment of Animals v. HHS, Judge Griffith (joined by Judges Tatel and Srinivasan) concluded the agency did not err in redacting certain information — “shipment-by-shipment quantity, crate size, and airline carrier information” — from a FOIA response about “nonhuman primate” imports. And in In re Sealed Case, Judge Srinivasan (joined by Judges Wilkins and Sentelle) held that “a generic appeal waiver [in a plea agreement] does not affect a defendant’s ability to appeal his sentence on yet-to-arise ineffective-assistance-of-counsel grounds.” If you find that conclusion surprising, you aren’t alone. Other courts disagree:

Perhaps this is a question the Supreme Court should decide — though Judge Srinivasan (who knows a thing or two about certiorari) tries to downplay the split’s significance:

And that’s the week.


Hmmm. This post is (at least) a touch whiny and self-indulgent. You’re probably thinking, “Boo-hoo, poor dear — has to read all those long decisions.” And that’s fair! In my defense, I try to only do this once a year.

* By way of full disclosure, Jeff is a friend and colleague at Kirkland & Ellis, and I was happy to sign a letter on his behalf.

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.

Print Friendly, PDF & Email