Notice & Comment

D.C. Circuit Review – Reviewed: “That’s Why Pencils Have Erasers”

The D.C. Circuit did a rare thing this week — in fact, it did it twice. It revisited opinions that the Court had already issued. In Detroit International Bridge v. Government of Canada, the Court “reissued” an opinion from several months ago by making a few minor changes. And in American Petroleum Institute v. EPA, the Court revised a decision from last summer in some pretty significant ways. Somewhat relatedly, the Court declined to rehear one of its cases — Clemente v. FBI — in an order that prompted a concurrence by Judge Kavanaugh.

These revisions got me thinking. How often does the D.C. Circuit change an opinion? So I again called on the services of the good folks in the BYU Law Library. This is what they came up with*:

Reissued REVISED

Today seems like a good time to discuss changing opinions.

Often changes are fairly minor. Here, for instance, are the changes in Detroit International Bridge:

Detroit Bridge

And here is the change from City of Phoenix, noted here last month:

City of Phoenix

Some changes, however, are more substantial. Indeed, American Petroleum Institute is an example of what can be dubbed a “notice-and-comment” opinion. Here is how Judge Kavanaugh explained the D.C. Circuit’s process:

API changes

In particular, in last year’s American Petroleum Institute decision, the Court said this:

API Last Year

Interesting. In other words, the Court essentially said “here is our understanding of the situation; if anyone has something to add, we welcome it.” That is not unlike a notice of proposed rulemaking. And then the parties filed “comments,” which the Court considered. This sort of thing happens indirectly all of the time, of course; parties can always file petitions for rehearing. But here, the Court invited it upfront. In theory, the Court could have called for supplemental briefing last summer. Instead, the panel opted to use a different approach. A while back, Michael Abramowicz and Thomas B. Colby authored an article entitled Notice-and-Comment Judicial Decisionmaking. It looks like we have an example — or, more accurately, a variation — of that idea!

The D.C. Circuit also decided a few other cases this week.

In Louisiana Public Service Commission v. FERC, Judge Williams (joined by Chief Judge Garland and Judge Rogers) denied the state commission’s petition for review of the federal commission’s denial of refunds. It seems that FERC “found in 2004 that certain of Entergy Corporation’s rates were unjust and unreasonable.” Under the Federal Power Act “the Commission ‘may order’ refunds for a portion of the period in which the unreasonable rate was in effect.” Here, however, FERC declined to do so. The Court remanded, “finding that the Commission had failed to adequately explain its reasoning in departing from its ‘general policy’ of ordering refunds when consumers have paid unjust and unreasonable rates.” On remand, however, FERC clarified that, in fact, it has no such general policy! The Court ended up siding with FERC, but not without a jab or two:

LA Public v FERC

In Duke Energy Carolinas, LLC v. FERC, Judge Rogers (joined by Chief Judge Garland and Judge Srinivasan) denied Duke Energy’s petition to review the Commission’s determination that Duke Energy’s project should only receive a 40-year license rather than the 50-year one it sought. Long story short, Duke Energy claimed “that the Commission failed to treat it like similarly-situated applicants … and announced a new qualitative approach to determining license terms without prior notice or reasoned analysis.” The Court disagreed for various case-specific reasons.

In Equinox Holdings, Inc. v. NLRB, Judge Silberman (joined by Judges Wilkins and Edwards) upheld the agency’s determination that Equinox “violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with Service Employees International Union Local 87.” This is a pretty fact-bound opinion, but they are interesting facts. The union won a fairly close vote, but Equinox alleged that an employee “had threatened to call ICE if the union lost” and that the union has used an election observer who had been involved a gun incident. The union had responses and the Court deferred to the agency.

Finally, in Sickle v. Torres Advanced Enterprise, Judge Millett (joined by Judges Rogers and Srinivasan) issued an important decision about the preemptive force of the Defense Base Act. David Sickle and Matthew Elliott worked on a military base in Iraq. Elliott, it is alleged, suffered a herniated disc and Sickle, as the resident medic, treated him. Sickle recommended Elliott return to the United States to receive further treatment. “The Defense Base Act establishes a workers’ compensation scheme for civilian government employees and contractors injured on overseas military bases,” and Elliott sought compensation under the Act. Upon learning of this, his employer terminated his contract and Sickle, shortly after signing a one-year contract extension, began receiving “threat[s] and intimidat[ion]” “insisting that he recant his support for Elliott’s workers’ compensation claim.” Sickle refused, and was also terminated “abrupt[ly], taking immediate effect without the contractually required thirty-day warning.” The Court “affirm[ed] the district court’s dismissal of Elliott’s tort claims” under implied conflict preemption. The Court, however, “reverse[d] as to Sickle’s tort claims … and as to both Elliott’s and Sickle’s remaining contract claims, and remand[ed] to the district court for further proceedings consistent with this decision.”

And that’s the week. Odds are that none of these opinions will be reissued.

* The methodology was really simple. They searched “panel rehearing” and “reissued” in the D.C. Circuit database, going back to 2010. I then had a research assistant remove false positives. For what it is worth, I addressed en banc decisions last September.

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