With one exception—a unanimous criminal decision—the D.C. Circuit’s opinions last week all drew dissents.

Perhaps the most high-profile case was Anthropic PBC v. U.S. Dep’t of War, No. 26-1049. As an indicator of broad interest, the listing of amicus briefs is about three pages long. Judge Katsas, joined by Judge Rao, rejected Anthropic’s claims that the Department violated the Federal Acquisition Supply Chain Security Act of 2018, the First Amendment, and the Due Process Clause by excluding Anthropic from its supply chain. The background dispute has been extensively covered.

The opinion focused principally on whether the Department reasonably determined that excluding Claude was necessary to protect national security because Anthropic might “manipulate” Claude in a way that would inhibit the Department’s use—and on whether that possibility constituted a statutory “supply chain risk.” The Court held that it did, reasoning that the definition includes the risk of “manipulat[ing]” a product so as to “deny” the product’s “function, use, or operation.” Judge Henderson disagreed, reasoning in dissent that the statutory definition—which covers risks that a supplier will “sabotage, maliciously introduce unwanted function, extract data, or otherwise manipulate” a product, 10 U.S.C. § 4713(k)(6)—covers only intentionally subversive acts.

In another high-profile case, Mahoney v. Capitol Police Bd., No. 24-5027, the Court held that federal regulations that prohibit the public from demonstrating on the Eastern Steps of the Capitol unless sponsored by a member of Congress violate the First Amendment. Judge Rao, joined by Judge Henderson, concluded that although “the Eastern Steps are a nonpublic forum, the regulations are not reasonable because an individual’s right to demonstrate outside the Capitol cannot turn on the discretion of a member of Congress.” This “type of preferential treatment on the Steps of the Capitol is unreasonable.” The Court remanded the district court’s universal injunction for reconsideration in light of Trump v. CASA, 145 S. Ct. 2540 (2025). Judge Rogers agreed that the regulations violated the First Amendment and that the universal injunction should be vacated. She dissented because she would have held that the Eastern Steps are a traditional public forum and that the near-total ban on expressive activity on the steps is not narrowly tailored to serve the government’s security interest.

Two other split decisions last week arose in more bread-and-butter administrative law contexts:

• Commissioner of Baseball v. Librarian of Congress, No. 24-1259: The D.C. Circuit considered the claims of copyright holders regarding the allocation of royalties from broadcast programming retransmitted on cable channels. Under Section 111 of the Copyright Act, cable providers pay royalties for retransmitted broadcast programming into a pool. The Copyright Royalty Board allocates the pool among different categories of copyright holders based on the market value of different types of programming (e.g., sports, public TV, devotional programming, commercial television, etc.). Sports and public TV copyright holders petitioned for review, both challenging the Board’s allocation as arbitrary, but advancing competing arguments. The D.C. Circuit (Srinivasan, J., joined by Childs, J.) held that the Board reasonably evaluated two different methods of market value but failed to explain how it merged the results from the two methods to arrive at the final allocation percentages. The Court vacated the decision and remanded for further explanation. Judge Rogers concurred in part and dissented in part. She reasoned that the Court acted prematurely in considering some of the arguments that were inextricably intertwined with the issues requiring vacatur, which could look different after the Board’s analysis on remand.
• Alstom Transp. v. Fed. RR Admin., No. 25-5456: The Federal Railroad Administration awarded a grant to Brightline to support high-speed rail between California and Las Vegas and waived a statutory requirement that Brightline purchase U.S.-made equipment. Brightline purchased German-made trains. Alstom, which submitted a bid to supply U.S.-made trains, challenged the waiver. Judge Katsas, joined by Judge Garcia, held that Alstom had standing to challenge the waiver but rejected its challenge. on the merits. The Court interpreted the waiver provision to permit the agency to make a judgment about whether, at the time the waiver was decided, there was a U.S. manufacturer producing the necessary high-speed trains, as opposed to whether a U.S. manufacturer would produce them in the future. Judge Walker dissented on standing, reasoning that it was not sufficiently predictable that Brightline would have purchased Alstom’s trains had the waiver not been granted.