Notice & Comment

D.C. Circuit Review – Reviewed: Stay Tuned

No opinions from the D.C. Circuit this week, but events of the week certainly promised decisions to look forward to.

On Monday, October 31, Judge Pan blocked the proposed merger between Penguin Random House and Simon & Schuster on the ground that it would substantially lessen competition “in the market for the U.S. publishing rights to anticipated top-selling books.”  The ruling reflects a recent trend in antitrust enforcement that is skeptical of all corporate concentration, regardless of its effect on consumers. The order blocking the merger comes from DDC. Why cover it here? For one, Judge Pan took her oath as a D.C. Circuit judge in September. She stayed on this case, which she oversaw as a district court judge, and it may be her final district court order. Moreover, the publishers have vowed an expedited appeal to the D.C. Circuit. Stay tuned for more.

On Tuesday, November 1, Judges Millett, Rao, and Childs issued a per curiam order appointing David Casazza, of Gibson Dunn as amicus to present arguments in favor of the district court’s order in End Citizens United PAC v. FEC. Here is a brief statement of the case from the district court order:

End Citizens United, a political action committee, filed a complaint with the Federal Election Commission against former President Trump’s campaign committee, alleging that the campaign had solicited and directed contributions to another committee in violation of the Federal Election Campaign Act, or FECA, more specifically 52 U.S.C. § 30125(e) and 11 C.F.R. § 300.61. The FEC dismissed the complaint, and End Citizens United filed this lawsuit against it over that nonenforcement decision. The FEC has not appeared or otherwise defended the action. Thus, after the Clerk of the Court entered default against the FEC, End Citizens United moved for default judgment. For the reasons explained below, the Court will deny the motion and dismiss the case.

FEC has again failed to appear and defend its nonenforcement decision in the Court of Appeals. The Court has asked Mr. Casazza to address whether FEC’s non-enforcement decision is non-reviewable, what the district court could properly consider in reaching that conclusion, and whether dismissal on jurisdictional grounds was the proper disposition if the non-enforcement decision is non-reviewable. Stay tuned for more.

On Wednesday, November 2, Judges Wilkins, Walker, and Rogers heard argument in Payne v. Biden. Jason Payne is a federal employee, and he is challenging Biden’s mandate that all federal workers be vaccinated against COVID-19. That policy provided that workers who failed to obtain a vaccine by November 22, 2021, would face disciplinary action up to termination. Mr. Payne has kept his job, but he alleges that he has been required to wear a mask and has faced additional scrutiny of his official travel and COVID-19 testing requirements. This has put him in an interesting double bind: on the one hand, he must point to his working conditions to establish his standing to challenge the vaccine mandate. On the other hand, Judge Boasberg ruled below that because Mr. Payne is complaining about his working conditions, he must resort to an administrative process under the Civil Service Reform Act before he can bring his case to federal court. The panel reportedly seemed skeptical that Mr. Payne could escape that double bind. But again: stay tuned.  

Finally, also on Wednesday, the Court issued a supplemental briefing order in Severino v. Biden—a case in which Roger Severino challenged President Biden’s decision to terminate him from the Administrative Conference of the United States before his term concluded. The dispute is nominally statutory: does the statute creating a term for members of the ACUS restrict the President’s ability to fire its members at will? At argument on Tuesday, however, the panel (Judges Millett, Wilkins, and Walker) pressed Mr. Severino’s counsel on the constitutional dimensions. Wednesday’s briefing order demands supplemental brief on the following question: “In the event that 5 U.S.C. § 595 does not allow the President to remove Appellant Severino except for cause, does the President have superseding constitutional authority to remove him at will?” For the answer, you guessed it: stay tuned.

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.

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