Notice & Comment

D.C. Circuit Review – Reviewed: What’s Old is New Again

I teach administrative law for a living — but that isn’t the only thing I teach. I also teach Federal Courts. One thing I enjoy about “Fed Courts” in particular is dusting off old cases, which form a big chunk of the canon. For instance, last month while prepping for class I stumbled across this tidbit:

This week has been one for dusting off old texts. Folks, for instance, are now reading In re Debs and Article II, Section 3 of the Constitution. For its part, the D.C. Circuit also picked up a feather duster.

Consider United States v. Butler, which required the D.C. Circuit to comb through the record of a murder conviction from 1970 and the original United States v. Butler opinion from 1973. Chief Judge Srinivasan, joined by Judge Pillard, concluded that the FBI’s discredited use of “hair evidence” tainted the jury’s verdict. No one disputes that the government presented unreliable evidence. The question though is whether it was material to the trial. Chief Judge Howell concluded it was not material:

Chief Judge Srinivasan disagreed with that conclusion, using language that no doubt will be cited again:

Judge Katsas dissented — vigorously and at length:

Will the United States seek cert? I don’t know; I’m not sure how often this issue comes up. But Judge Katsas argues that the majority’s analysis does not “fairly describe the six decades of case law applying Napue’s materiality requirement,” which may catch the Justices’ attention.

Shatsky v. Palestine Liberation Organization doesn’t go back to 1970, but it does concern “a 2002 suicide bombing in the West Bank.” Judge Millett — joined by Judges Henderson and Wilkins — concluded that the district court erred by not dismissing the case for lack of personal jurisdiction. To reach that conclusion, the Court had to dust off pleadings from 2007 to determine whether the PLO forfeited the issue. Along the way, the Court also discussed final judgments, cross appeals (which discussion merits a close read), and, of course, personal jurisdiction. Note: the facts of this case, like Butler, are horrible.

Pueschel v. Chao — a discrimination case — also involves a deep dive into history. Here is a snippet from Judge Rogers’ opinion (joined by Judges Wilkins and Silberman):

And then this:

United States v. Delaney addresses another old text: the Fourth Amendment.  Judge Tatel (joined by Judges Pillard and Wilkins) concluded that the police violated the Fourth Amendment when they made a New Year’s Eve arrest in 2017. Officers on patrol heard gunfire and attempted “to follow and investigate the sounds,” which investigation led them to Delaney’s car in a narrow, dark parking lot. They parked their cruiser within a few feet of the car; Delaney, in theory, could have driven away, but it would have required some maneuvering. As the officers approached, Delaney was passionately kissing a woman in the passenger seat — while staring at the officers in a way that struck them as “odd.” One officer instructed him to open the door and, sure enough, found a gun and spent casings. Although it was a “close call,” and I suspect some judges would disagree with the panel here, Tatel concluded that this was a Fourth Amendment violation.*

Sierra Club v. Wheeler is actually about, inter alia, dust. Judge Henderson (joined by Judge Rao) authored this opinion, which addresses “performance standards” for air pollutants discharged from solid waste incinerators. The Clean Air Act requires States to submit plans for this issue, and if they don’t, directs that “[t]he Administrator shall develop, implement and enforce a plan for existing solid waste incineration units . . . located in any State which has not submitted an approvable plan . . . within 2 years after the date on which the Administrator promulgated the relevant guidelines.” Here, Sierra Club sought to compel EPA to impose a plan on non-compliant States.  The D.C. Circuit, however, concluded the CAA’s citizen-suit provision acts as “a conditional waiver of sovereign immunity” that does not apply to this discretionary task. Judge Wilkins concurred, using language that echoes an earlier age:

If you practice environmental law, you should read Judge Wilkins’ concurrence carefully.

Finally, United Parcel Service, Inc. v. Postal Regulatory Commission addresses one of the nation’s oldest institutions: the post office. Indeed, “Benjamin Franklin was appointed our first Postmaster General in 1775.” This opinion, however, has nothing to do with that history. Here is how Judge Edwards (joined by Judges Henderson and Millett) summed it up:

And that’s the week, unless you’d like to dive into Tarble’s Case.

* I cheated by mentioning the Fourth Amendment. Sure, it is an old document, but it isn’t one that any judge needs to dust off. But here is an old word dusted off by Judge Tatel for this opinion: “necking.”

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