Notice & Comment

D.C. Circuit Review – Reviewed: The Irons Footnote

It’s summer again — at least in the D.C. Circuit. As explained last week, June, July, and August are busy months in the nation’s “second most important court.” We have seven opinions — and one important order.* This creates a dilemma for, well, me. I could discuss all of the cases in great detail. But then you could not possibly read this post in “just five minutes.” I could discuss none of the cases in any detail. But where is the fun in that? Or — and you can see where this is going — I can pick one case to focus on and then summarize the others. I pick option three.

The case I will focus on is National Environmental Development Association’s Clean Air Project v. EPA (NEDACAP II) (that’s a mouthful). Why is it noteworthy? Because it contains an “Irons Footnote.” What’s that? Here is the D.C. Circuit’s explanation:

Irons Footnote

An Irons Footnote makes a good deal of sense; the D.C. Circuit does not “go” en banc very often (for good reason), and this mechanism allows the Court to clean-up “little” issues without a lot of hassle. It’s also rarely used. Indeed, it took me a while to find even somewhat recent examples:

  • SecurityPoint Holdings, Inc. v. TSA, 836 F.3d 32 (D.C. Cir. 2016): “We conclude that SecurityPoint is a prevailing party and, in doing so, overrule Waterman Steamship Corp. v. Maritime Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990), as inconsistent with the Supreme Court’s later decision in Shalala v. Schaefer, 509 U.S. 292 (1993).”
  • United States v. Southerland, 466 F.3d 1083 (D.C. Cir. 2006): “Before Hudson this court had ruled that the remedy for a violation of § 3109 was suppression of the evidence found in the search. Because our conclusion — that a suppression remedy is no longer available under § 3109 — conflicts with this precedent, this opinion has been circulated to and approved by the full court.”

By contrast, here are examples where the Court has declined to use an Irons Footnote:

  • National Association for Surface Finishing v. EPA, 795 F.3d 1 (D.C. Cir. 2015): “The environmental petitioners argue that this court ‘has never addressed or decided the statutory issue presented here … As they see it, NRDC addressed a different question, and ABR then erroneously treated the scant reasoning in NRDC as binding. ‘Because ABR is directly at odds with clear statutory text that neither ABR nor NRDC addresses,’ they request en banc action via an Irons footnote. … This is not, however, the kind of minor or marginal issue, nor one on which our precedents have been shown by intervening decisions to be clearly incorrect, such as might call for reversal in an Irons footnote.”
  • Oakey v. Airways Pilots Disability Income Plan, 723 F.3d 227 (D.C. Cir. 2013): “Oakey asserts that Northwest is no longer good law and that we should overrule it through an ‘Irons footnote.’ It is true that, in a case ‘in which action by the court en banc may be called for, but the circumstances of the case or the importance of the legal questions presented do not warrant the heavy administrative burdens of full en banc hearing,’ a panel of the court may use an ‘Irons footnote’ to ‘overrul[e] a … precedent which, due to an intervening Supreme Court decision, or the combined weight of authority from other circuits, a panel is convinced is clearly an incorrect statement of current law.’ But we are not the least convinced intervening caselaw has vitiated Northwest’s rationale.”
  • Hurt v. Social Security Admin., 544 F.3d 308 (D.C. Cir. 2008): “An extraordinary number of people, institutions, and inanimate objects have wronged Tyrone Hurt. In just the last couple of years, Hurt has sued the Declaration of Independence, Black’s Law Dictionary, the United Nations, agencies of the District of Columbia and the Federal Government, and various courts and their officers. Hurt has claimed the existence of state supreme courts violates the Eighth Amendment, requested the Secret Service and the President’s Cabinet be declared unconstitutional, and demanded the deportation of a Spanish-speaking government employee. Nor are the slights Hurt suffered mere glancing blows; he routinely demands trillions of dollars in damages. In the overwhelming majority of these suits, the district court granted Hurt’s application to proceed in forma pauperis (‘IFP’) — in other words, without paying any filing fees. In each case, the district court then dismissed Hurt’s suit as meritless. …. When ‘the number, content, frequency, and disposition’ of a litigant’s filings show an especially abusive pattern, we think a court may deny IFP status prospectively. We recognize this holding conflicts with In re Green, 669 F.2d 779, 781 (D.C. Cir. 1981) (per curiam), [but later] …. Supreme Court cases suggest Green was wrong when it held section 1915(a) prohibited prospective denials of IFP status … [and s]ince intervening Supreme Court cases have overruled Green‘s holding on this point, we need not resort to en banc endorsement under Irons ….”

Today we have a new one, and it is a doozy. In NEDACAP II, Judge Edwards (joined by Chief Judge Garland and Judge Randolph) addressed a challenge to EPA regulations under the Clean Air Act; those regulations were issued in response to National Environmental Development Association’s Clean Air Project v. EPA (NEDACAP I), 752 F.3d 999 (D.C. Cir. 2014), also authored by Judge Edwards.

Here is the problem. National EPA CAA policies can only be challenged in the D.C. Circuit but regional decisions can be challenged in other circuits. In a case called Summit Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 2012), the Sixth Circuit invalidated what EPA considered to be a national policy. In response, EPA said it would apply its old policy everywhere except the Sixth Circuit. In NEDACAP I, the D.C. Circuit said that was unlawful under EPA regulations requiring national uniformity. In response, EPA promulgated a new regulation that says “only the decisions of the U.S. Supreme Court and decisions of the U.S. Court of Appeals for the D.C. Circuit Court that arise from challenges to ‘nationally applicable regulations … or final action,’ as discussed in Clean Air Act section 307(b) (42 U.S.C. 7607(b)), shall apply uniformly.” Is that lawful? Yes, says Judge Edwards:


The Court concluded that the statute does not “preclude[]” EPA’s “use of intercircuit nonacquiescence” and that the agency’s interpretation was reasonable enough to merit deference: “What is most noteworthy here is that nothing in the language of § 7601(a) addresses judicially created inconsistencies in the application of EPA policies.” Rather, “the statute clearly contemplates some splits in the regional circuits.” Otherwise, “the first court of appeals to address an issue would determine EPA’s policy nationwide. And that would make no sense because only the D.C. Circuit has jurisdiction to hear and decide cases involving ‘nationally applicable regulations’ ….” (If you are interested in nonacquiescence, this opinion is a must read.) Thus, the Court upheld the new regulations.

So where does the Irons Footnote come in? With regard to NEDACAP I!


In other words, Judge Edwards asked the Court to trim back his own prior analysis. “Bravo — I love intellectual honesty.” The law is complicated and a willingness to second guess ourselves isn’t a bad thing. As Justice Scalia once explained:

Dart Cherokee

Judge Silberman concurred to explain how EPA “can often rather easily mitigate the inter-circuit nonacquiescence problem – and it should.” In particular, it should declare when a national policy is national. To be sure, that may lead to forum shopping. But such EPA declarations are subject to judicial review, so EPA cannot say something is national in scope when it really isn’t. Moreover, contrary to the views of the Fifth Circuit, Silberman thinks EPA should receive deference on this point.

Interesting. There is a student note to be written here.

The Court decided six other cases this week. I’m tempted to just point you towards my Twitter feed (ugh) where you can get a good sense of those cases. After all, today is “#AppellateTwitter day.” Because that feels like cheating, however, here is a quick rundown, although I will crib from my “tweets” (double ugh).

Here is how Judge Tatel, joined by Judges Srinivasan and Millett, opened his opinion in United States v. Grey:

United States v. Gray

That’s a great intro.

In Colorado Fire Sprinkler, Inc. v. NLRB, Judge Millett (random trivia: I’ve been told she has a black belt in karate … true?), joined by Judges Rogers and Randolph, ruled against the NLRB. This is how she began her opinion (which is also very well written):

Colorado Fire v. NLRB - intro

And this is how she closed it:

Colorado Fire v. NLRB

ESI Energy v. FERC — authored by Judge Wilkins, joined by Judges Millett and Edwards — is a FERC case:


Judge Wilkins is a good sport; these are hard cases to write. One day he’ll be on a panel with Judge Katsas and Katsas can write up the FERC case!

Mercy Hospital, Inc. v. Azar is about Medicare reimbursement. Perhaps more interesting, it also is about limits on jurisdiction. Here is how Judge Griffith, joined by Judges Tatel and Millett, opened:

Mercy Hospital v. Azar

And here is my favorite part of the opinion:

Mercy Hospital v. Azar II

Why do I like it? I’m not sure — but “keeping score” made me smile.

Washington Alliance of Technology Workers v. DHS is nominally about administrative law. But it is really about civil procedure. Here is how Judge Henderson (joined by Judges Edwards and Ginsburg) opened her opinion:

Washington Alliance v. DHS

There is a lot going on in this one, but I liked this paragraph:

Washington Alliance v. DHS II

And finally, the last case this week (Fraenkel v. Islamic Republic of Iran) is an awful one. This introduction — penned by Judge Edwards, joined by Judges Griffith and Randolph — is enough for you to get a sense:

Fraenkel v. Islamic Republic of Iran

What a horrible set of facts. And unfortunately, this is not the first such case:

Fraenkel v. Islamic Republic of Iran II

And that’s the week.

* Specifically, the D.C. Circuit issued a lengthy order in Garza v. Azar. All three judges wrote opinions — Judges Rogers and Srinivasan in the majority and Judge Griffith in partial dissent. On Monday morning, the Supreme Court vacated the en banc D.C. Circuit’s related decision for an individual. Later that day, the motions panel denied in part a stay of class certification regarding the same abortion-related issue. The Court will address the issue in September: “The Clerk is directed to calendar this case for oral argument on the first appropriate date in September 2018. The parties will be notified separately of the oral argument date and composition of the merits panel.”

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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