Notice & Comment

D.C. Circuit Review – Reviewed: Should There Be a Year Three?

This post is self-indulgent; I apologize.

This week marks the end of another year of D.C. Circuit Review — Reviewed. My first post was on August 10, 2015. It is now August 11, 2017. Between those two dates, I’ve authored more than 100 posts about the work of the D.C. Circuit. (I don’t think anyone syndicates blog posts — and that’s probably for the best.) The question thus arises: Should I keep doing this? And my answer? Sure. Granted, some weeks are frustrating, especially when I don’t have time to do justice to the Court’s opinions. I also worry I’m running out of ideas. And although I try to keep my views about the correctness of the Court’s opinions from seeping into my analysis, I don’t always succeed.* On the other hand, the Court’s opinions give me ideas for scholarship. And though some of my posts are real clunkers, I like to think I’ve made some good points this year. But the most important consideration is this: the D.C. Circuit’s opinions are interesting. That’s good enough for me — on to Year Three!

Before doing so, however, I thought it would be useful to compile a list of the ten most important D.C. Circuit decisions since August 10, 2016. Enjoy.

Most Important Admin Law Decisions:

(1) PHH Corp v. CFPB: This is a no brainer. We don’t have the en banc decision yet. But even so, this is a huge case (even if it probably is not the most important separation-of-powers case in a generation).

(2) U.S. Telecom v. FCC: This is the net neutrality case. It was decided last year but en banc review was denied a few months ago. Obviously huge.

(3) Raymond J. Lucia Companies, Inc. v. SEC: This constitutional case about the SEC’s administrative law judges has a very good shot of going to the Supreme Court, especially because there is a split. The fact that the D.C. Circuit itself is hopelessly divided is also noteworthy.

(4) Perry Capital v. Mnuchin: This case implicates billions of dollars and the D.C. Circuit has struggled with it. Enough said.

(5) Clean Power Plan Stay: The D.C. Circuit’s stay may be the most important stay … since the Supreme Court granted a stay in the same case! The D.C. Circuit heard this case en banc from the get-go but likely will never issue an opinion.

(6) United States v. Ross: The D.C. Circuit struck down a federal sex offender registry on administrative law grounds.

(7) Clean Air Council v. Pruitt: This case is potentially a big deal. How broadly it will be applied remains to be seen, however, especially because it may be limited to its context.

(8) A tie — Judge Kavanaugh’s two big EPA decisions: Americans for Clean Energy v. EPA (decided a few weeks ago) and Mexichem Fluor, Inc. v. EPA (decided this week).

(9) Another tie: Flyers Rights Education Fund v. FAA (the Court rejects an agency decision to not initiate a rulemaking, which almost never happens) and Heartland Plymouth Court v. NLRB (which addresses the nonacquiescence doctrine).

(10) Global Tel*Link v. FCC: This case was more important before the panel revised its Chevron analysis, but it is still significant.

If you want some noteworthy non-administrative law opinions, you can have them too (this list is not exhaustive).

Other Opinions of Note:

al Bahlul v. United States.

Ahmed Salem Bin Ali Jaber v. United States.

Keepseagle v. Perdue.

Senate Permanent Subcommittee on Investigations v. Ferrer.

United States v. Anthem, Inc.

United States v. Bronstein.

A.N.S.W.E.R. Coalition v. Basham.

Judicial Watch, Inc. v. Kerry.

Rothe Development, Inc. v. DOD.

In Re Abd Al-Rahim Hussein Al-Nashiri.

And here are a few cases that are just especially interesting:

Competitive Enterprise Institute v. DOT.

U.S. Association of Reptile Keepers v. Zinke.

Bais Yaakov of Spring Valley v. FCC.

In short, it’s been a busy year in the D.C. Circuit.

This week is no exception. Indeed, we have 14 cases. Sorry.

  • Mexichem Fluor, Inc. v. EPA: Judge Kavanaugh (joined by Judge Brown) rejected EPA’s efforts to “regulat[e] the use of hydrofluorocarbons, known as HFCs.” Here is the analysis: “The fundamental problem for EPA is that HFCs are not ozone-depleting substances, as all parties agree. Because HFCs are not ozone-depleting substances, Section 612 would not seem to grant EPA authority to require replacement of HFCs. Indeed, before 2015, EPA itself maintained that Section 612 did not grant authority to require replacement of nonozone-depleting substances such as HFCs. But in the 2015 Rule, for the first time since Section 612 was enacted in 1990, EPA required manufacturers to replace non-ozone-depleting substances (HFCs) that had previously been deemed acceptable by the agency. In particular, EPA concluded that some HFCs could no longer be used by manufacturers in certain products, even if the manufacturers had long since replaced ozone-depleting substances with HFCs. EPA’s novel reading of Section 612 is inconsistent with the statute as written. Section 612 does not require (or give EPA authority to require) manufacturers to replace non-ozone-depleting substances such as HFCs. We therefore vacate the 2015 Rule to the extent it requires manufacturers to replace HFCs, and we remand to EPA for further proceedings consistent with this opinion.” Judge Wilkins dissented: “The bar for deciding a case at Chevron step one is high, requiring clear and unambiguous congressional intent.”
  • Ortiz-Diaz v. HUD: This case was decided last year but was reconsidered by the panel — and today the panel reached the opposite conclusion. And all three judges wrote an opinion. Judge Rogers (who dissented last time) held for the majority that refusing to transfer someone for biased reasons sometimes is actionable. Judge Henderson concurred in the judgment to offer her own view of what the facts suggest. Rogers then concurred with her own opinion: “Perhaps our reconsideration will serve as a shot across the bow that courts in this Circuit must adhere to the summary judgment standard and not prematurely reject evidence that a jury could reasonably credit. The ink that has been spilled over the course of this appeal, however, does not augur favorably for that result.” And Judge Kavanaugh concurred to say this: “In my view, the en banc Court at some point should go further and definitively establish the following clear principle: All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII.”
  • American Hospital Association v. Price: Judge Wilkins (joined by Chief Judge Garland) includes a remarkable footnote whose “lofty philosophical maxim, ordinarily relevant only to bright-eyed college freshmen, sums up our reasoning in this case”:

    Long story short, the district court granted mandamus against HHS because the agency has not completed reimbursements quickly enough. But HHS has “an ever-growing backlog of over a half-million appeals.” “We conclude that, notwithstanding the District Court’s earnest efforts to make do with what the parties presented, the failure to seriously test the Secretary’s assertion of impossibility and to make a concomitant finding of possibility was an abuse of discretion. The Court declared that a party ought without regard for whether the party can.” Judge Henderson dissented: “Just 18 months ago, we reversed the district court for holding that it lacked jurisdiction to compel the Department of Health Human Services (HHS), via mandamus, to comply with statutory deadlines for resolving Medicare reimbursement appeals. Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 192 (D.C. Cir. 2016) (AHA I). Further, we indicated that mandamus would ‘likely’ be ‘require[d]’ by the end of September 2017 unless HHS, with congressional assistance if necessary, made ‘meaningful progress’ toward reducing a backlog of hundreds of thousands of appeals filed with the agency’s administrative law judges (ALJs). Seeing no such progress, the district court on remand issued a mandamus order directing HHS to eliminate the backlog by December 31, 2020, and to meet reduction targets in the interim. Today my colleagues overturn the district court again, this time concluding that it abused its discretion in too readily imposing a schedule for statutory compliance. … Remanding so that the court can incant magic words — ‘lawful compliance [is] indeed possible,’ Maj. Op. 10 (emphasis in original) — will tell us only what we already know and almost certainly produce a third appeal. The process will waste time, punishing blameless Medicare providers who await billions of dollars of delayed payments essential to their operations.”

  • Susquehanna International Group v. SEC: Chief Judge Garland (joined by Judges Griffith and Sentelle) ruled that the SEC erred when it approved a rule change proposed by Options Clearing Corporation without making its own findings and determinations. This is a very well-written opinion; read it.
  • Texas Neighborhood Services v. HHS: Judge Pillard (joined by Judges Tatel and Wilkins) affirmed the Appeals Board’s decision to claw back money from Texas Neighborhood Services (which money was spent on bonuses). The panel did not agree with all of the Board’s analysis but concluded it was harmless error.
  • Louisiana Public Service Commission v. FERC: Judge Wilkins (joined by Judges Rogers and Kavanaugh), stated that this case “continues a lengthy saga of litigation dealing with the allocation of production costs among Entergy Corporation’s utility operating companies.” What happened? The agency won. Saga over — or is it? Sagas rarely just end.
  • United States v. Laureys: Judge Rogers (joined by Judges Tatel and Pillard) concluded there was ineffective assistance of counsel: “Even if it was not actually trial counsel’s intent to limit Dr. Berlin’s inquiry, his single-minded pursuit of a particular diagnosis had the effect of denying his client Dr. Berlin’s services.”
  • All American Telephone Company v. FCC: Judge Millett (joined by Judges Tatel and Griffith) addressed a scheme to defraud AT&T — and issued a very unusual opinion. I don’t want to disillusion anyone, but despite its name, “All American Telephone Company” isn’t entirely wholesome. Nor is Beehive Telephone Company or Joy Enterprises. Indeed, “Joy and Beehive were engaged in a classic traffic-pumping scheme: Beehive paid Joy kickbacks in exchange for the inflated traffic that Joy’s conference and sexually explicit chat line services generated.” The story goes downhill from there. But here is the interesting part of the opinion: although upholding the FCC’s damages conclusion, the D.C. Circuit nonetheless essentially excised portions of the agency’s analysis so it wouldn’t mislead a state court that is also considering aspects of the fraud. I have never seen that before. Perhaps there is a student note here ….
  • Rhino Northwest, LLC v. NLRB: Judge Srinivasan (joined by Judges Rogers and Edwards) addressed “riggers.” What’s a rigger, you ask? A rigger is an employee who assists with concerts and is “responsible for ‘using motors to safely suspend objects overhead before events and safely removing them with motors afterwards.'” Are riggers sufficiently distinct from other employees to form their own bargaining unit? Yes, says the Court, upholding the agency’s conclusion.
  • Clemente v. FBI: “Clemente has spent years researching the activities of Gregory Scarpa, Sr., a high-ranking Mafia member and FBI informant.” Did the FBI adequately respond to her FOIA requests? Yes, says Judge Srinivasan (joined by Judges Pillard and Edwards): “Contrary to her argument, the FBI had no need to conduct a full-text search, examine a separate electronic surveillance records system, or search for ‘tickler files’ (duplicate files containing copies of records informally kept by supervisors). As the FBI explained in its declarations, those searches would have been redundant or beyond the scope of Clemente’s specific request.”
  • Crawford v. Duke: Here is Judge Millett’s summary (joined by Judges Rogers and Pillard): “James Crawford, an African-American employed by the Department of Homeland Security, filed suit alleging race discrimination, retaliation, and a hostile work environment. The district court dismissed his case for failure to exhaust his administrative remedies. Because attachments to Crawford’s administrative complaint adequately identified his claims alleging a discriminatory performance review and a later suspension, we hold that those two claims were exhausted and reverse in part.”
  • Gulf Coast Maritime Supply, Inc. v. United States: This is a per curiam opinion (Judges Tatel, Brown, and Griffith) that opens this way: “This case involves subjects often associated with controversy and temptation: alcohol, tobacco, and taxes. But the case turns on some fairly straightforward issues of statutory interpretation, not sin.” I suspect Judge Brown wrote this opinion. First, there are footnotes, and Judge Tatel doesn’t use them. And second, she only joined the per curiam in part. My guess is that she wrote at least a draft of the opinion, concluded she couldn’t join all of it, and then it was turned into a per curiam, to which she concurred in part. And third, the intro has a bit of a “Judge Brown” feel to it. That said, I’m not especially confident about my guess. (What’s the case about? Permits for imports. Here is the holding: “We agree with the district court that the AIA prohibits Gulf Coast’s attempt to restore its terminated tobacco permit. Gulf Coast can bring a refund suit if it disputes liability for unpaid excise taxes. We also affirm the district court’s holding that it lacked jurisdiction over Gulf Coast’s alcohol permit claim.”)
  • Hall v. District of Columbia: This is a fact-bound case about a horrible birthday party. As Judge Pillard (joined by Judges Rogers and Millett) put it, “This case arises from restaurant patron Michelle Hall’s claims that employees of Cities Restaurant and Lounge, and the Metropolitan Police Department officers they summoned, reacted overly harshly when she raised a question about her bill and temporarily left the restaurant.” How horrible was the party? This horrible: “Cities employees responded as if Hall’s departure were an attempt to avoid paying her bill. They called the police to report felony theft of services. The responding officers located Hall at the bar across the street and broke down the door of the single-occupancy bathroom where Hall and a friend were freshening their makeup and using the toilet. Without asking her any questions about what happened at Cities, Hall contends, the police handcuffed Hall, dragged her out of the bar, and detained her on the sidewalk and then in a squad car for about forty-five minutes.” But she had left her credit card with Cities. When the police found out, they released her. She sued raising numerous claims, which the Court addressed, sometimes ruling for her (including rejecting qualified immunity) and sometimes not. I’ll leave it at that.

And finally …

  • In re Khalid Shaikh Mohammad: A per curiam panel (Judges Rogers, Tatel, Griffith) issued a writ of mandamus forcing a judge of the United States Court of Military Commission Review to recuse himself because of potential bias. Before becoming a judge, he stated that: “We’ve got the major conspirators in the 9/11 attacks still at Guantanamo Bay—Khalid Sheikh Mohammed and four others,” and “[t]o compare Ghailani to Khalid Sheikh Mohammed, they’re two totally different types of cases. And the magnitude of what they did is very different.” The Court concluded that was enough to require recusal.

I enjoy writing these posts — that is why I’m starting Year Three. But boy, I wish the Court would spread out its work a little more evenly.

* Rereading my posts, for instance, my abhorrence of unfair retroactivity shines through. What can I say? The “notion of unknowable law is literally Orwellian.”

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