Notice & Comment

D.C. Circuit Review – Reviewed: Where Are All The “Administrative” Appeals?

This week has been busy in the D.C. Circuit. There are nine cases. But only three have anything to do with administrative law. That fact reminded me of a quirky tidbit that I discovered about the D.C. Circuit: The number of administrative appeals decided by the D.C. Circuit appears to have been declining over the past quarter century.

My methodology is not perfect (cut me some slack: this is just a blog post), but here goes. Using Federal Court Management Statistics data prepared by the U.S. Courts, I plotted every “Administrative” appeal for the D.C. Circuit from 1992 to 2015 that was coded under “Appeals Filed” and “Appeals Terminated.” Be warned: I’m not sure how the U.S. Courts codes cases or whether its process has changed over the years. With those caveats, here is the data*:


I’m still thinking through what this means. It strikes me that a possible explanation is that although the total number of pages in the Federal Register generally continues to grow, the total number of rules hasn’t. (The number of “major” or “economically significant” rules has been trending upwards, although the line isn’t smooth.) I’m not wedded to that theory (indeed, I’m not wedded to any of this). But it strikes me as potentially interesting.

And with that buildup, here are this week’s cases:

  • Safari Club International v. Jewell: Here, Judge Tatel (joined by Judges Rogers and Edwards) reversed the district court’s decision that there was no final agency action. “Although the African elephant is protected under both domestic and international law, the Interior Department’s Fish and Wildlife Service has long allowed American hunters who shoot Tanzanian elephants to repatriate their trophies because, according to the Service, doing so ‘would not be detrimental to the survival of the species.'” The Service, however, “indefinitely suspended issuance of import permits.” Two hunting organizations challenged that suspension, but “no member of either group had applied for a permit.” The district court thus “dismissed the case for lack of final agency action and for failure to exhaust administrative remedies.” The D.C. Circuit reversed. The analysis in this case (including jurisdiction) is important. Here is a taste: “The Service’s final argument—that Safari Club failed to exhaust its administrative remedies—is absurd.” Indeed, “applicants faced with a total ban on permits” are not forced to “seek a permit and then challenge the agency’s preordained denial in administrative proceedings.”
  • Borgess Medical Center v. Burwell: This is a case involving hospitals and “the denial of reimbursements for the offsite training expenses of their medical residents.” The government “is empowered to reimburse inpatient hospitals for costs associated with ‘graduate medical education.'” The method for doing so, however, is technical — especially for offsite settings. Evidently, “the Secretary’s regulations require a written agreement between the hospital and nonhospital showing the hospital will incur the cost of the resident’s salary and fringe benefits while working offsite along with reasonable compensation to the nonhospital for supervisory teaching activities.” Here, the question is whether the hospitals met this “written agreement” requirement. The D.C. Circuit, in an opinion by Judge Brown (joined by Judges Tatel and Kavanaugh), said no. (The reason is very fact specific. Here is a sample: “The 1973 Agreement is not an agreement between a hospital and a nonhospital … but is rather an agreement between the Hospitals to create the predecessor to [the Michigan State University Kalamazoo Center for Medical Studies].”)
  • USPS v. PRC: This case is about rates. The per curiam opinion for the panel of Judges Rogers, Griffith, and Silberman says this: “In the instant case, the Postal Service petitions for review, contending the Commission’s action denying its parcel reclassification request was arbitrary and capricious … for failing to acknowledge, much less explain, its decision to depart from precedent granting similar requests. … We grant the petition.” I’ll leave it at that.
  • Yueh-lan Wang v. New Mighty U.S. Trust: I’ll let Judge Henderson (joined by Judges Kavanaugh and Millett) take it away: “This case presents the question of how to determine the citizenship of a trust for diversity subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a). In light of the United States Supreme Court’s recent decision in Americold Realty Trust v. ConAgra Foods, Inc., 136 S. Ct. 1012 (2016), we conclude that a so-called “traditional trust” carries the citizenship of its trustees. We accordingly reverse the district court’s Rule 12(b)(1) dismissal and remand for further proceedings.” (This is a great line, by the way: “The facts giving rise to this lawsuit began over eighty years ago and thousands of miles away.” The Court also quotes “the advice given Dustin Hoffman’s eponymous character in the 1967 movie The Graduate,” namely: “I just want to say one word to you. Just one word …. Are you listening? …. Plastics.” Confused? Well, that quote make sense in the context of the opinion.)
  • Winston & Strawn, LLP v. McLean: Here, Judge Edwards (joined by Judges Wilkins and Williams) decided an interesting civil procedure question. “Under the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded’ for want of opposition,” since “[t]he burden is always on the movant to demonstrate why summary judgment is warranted.” Under the local rules of the District Court, however, “the court has discretion to treat a motion ‘as conceded’ if the nonmoving party fails to timely file an opposition to the motion.” “In this case, the District Court relied solely on Local Rule 7(b) in granting summary judgment for Appellee ‘as conceded.’ There is nothing to indicate that the District Court considered whether Appellee’s assertions warranted judgment under Rule 56. We therefore reverse and remand the case to the District Court so that it may reconsider Appellee’s motion for summary judgment in adherence with the applicable Federal Rules of Civil Procedure.”
  • Smith v. United States: “Ronald M. Smith sued the United States and two United States Capitol Police Officers – Corey Rogers and Lawrence O. Anyaso” for “false arrest, malicious prosecution, intentional infliction of emotional distress, and, against the officers, a violation of his rights under the Fourth Amendment to the Constitution.” Judge Randolph (joined by Judges Pillard and Edwards) affirmed the grant of summary judgment in favor of the defendants. This case is also fact specific. (Here is a sample: “We do not suggest that videos are always conclusive, because even a video can give a distorted view of a disputed scene. Nevertheless, in this case, the video indisputably shows Smith accelerating his car toward Rogers and nearly hitting him. Probable cause did not depend on how many miles per hour the car was traveling or whether the car actually touched the officer’s leg.”) Judge Edwards concurred: “[T]here are aspects of this case that distress me, so I am stirred to write separately. The law does not always produce just results and this case may be a good example. As I see it, the incident between Smith and Officer Rogers was much ado about nothing — a needlessly absurd faceoff between a seemingly hot-headed citizen and a seemingly impetuous police officer. The citizen invariably loses in such exchanges, as Smith found out. Smith’s imprudent action gave Officer Rogers just enough to assert probable cause, and the officer acted on it.”
  • Reed v. District of Columbia: This is a case about fees under the Individuals with Disabilities Education Act. “Appellants contend that the District Court erred in excluding certain hours spent at ‘settlement conferences’ from their fee award. Appellants also assert that the District Court abused its discretion in refusing to find that the ‘prevailing market rate’ for attorneys’ fees in IDEA cases is aligned with the Laffey Matrix, a fee matrix originally compiled to reflect the prevailing market rate for “complex federal litigation.” Here is Judge Edwards (joined by Judges Tatel and Sentelle) for the Court: “We agree with Appellants that the District Court should not have excluded certain hours billed as ‘settlement conferences’ from its initial fee award calculation. However, we hold that the District Court did not abuse its discretion in finding that Appellants had failed to demonstrate that their IDEA matters fall within the category of ‘complex federal litigation” to which the Laffey Matrix applies.'” Judge Tatel concurred to explain that were the panel not bound by earlier precedent, he “would hold, as a matter of law, that IDEA litigation is sufficiently complex to warrant Laffey rates.”
  • Kennedy v. Bowser: Here is an interesting start to an opinion: “Manu Kennedy was a fireman with the District of Columbia (District) Fire and Emergency Medical Services Department (Department). He had a beard. Department policy required him to shave it. Because of a medical condition, however, he could not do so without discomfort and infection. He asked the Department to accommodate his condition. The Department refused. Kennedy sued, alleging 28 counts of discrimination.” The district court did not think there was a disability. Judge Henderson (with Judges Griffith and Sentelle) concluded that the Court lacked jurisdiction to entertain an interlocutory appeal since Kennedy waited too long after entry of the order to appeal. Kennedy “contends that the notice of appeal and the order denying reconsideration, both of which were transmitted to this Court within the statutory period, serve the same purpose as an application and can be treated as such. We disagree. Even assuming the ‘functional equivalent’ of an application satisfies section 1292(b) and Rule 5 of the Federal Rules of Appellate Procedure—an issue we do not decide—the notice and order here do not meet that description.” Judge Griffith concurred: “I write separately to emphasize that our decision is limited to the facts at hand: a filing that fails to perform the most rudimentary functions of a proper petition. Our holding does not resolve whether more conscientious efforts might qualify as functional equivalents of petitions for permission to appeal.”
  • United States v. Gooch: also concerned the “functional equivalent” doctrine, this time in the context of post-conviction review. Here, the panel (Judge Wilkins, joined by Judges Kavanaugh and Williams) found a “functional equivalent” for purposes of Rule 3 of the Federal Rules of Civil Procedure (which governs appeals as of right, rather than appeals by permission, which are governed by Rule 5). But then the panel found that Larry Gooch — who “was convicted of numerous crimes in connection with his involvement in the ‘M Street Crew’ gang” — did not receive ineffective assistance of counsel: “Gooch has not carried his burden of demonstrating prejudice. The evidence tying Gooch to the murders of Calvin Cooper and Yolanda Miller was substantial and likely had a much greater influence on the jury than this single, fleeting remark made by the testifying detective during the three-month-long trial.”

    That is a lot of law for a single week. And perhaps it would have been even more law 25 years ago!

* I also looked at the same data for all the circuit courts. It is interesting but less helpful.



After all, there was a massive spike in immigration appeals: “In 2004, administrative agency appeals had the largest percentage and numeric increases, climbing by 2,267 filings to 12,255. This increase caused the proportion of administrative agency appeals to grow from 16 percent of total appeals court filings to 20 percent. This year’s rise consisted primarily of appeals of decisions by the Board of Immigration Appeals (BIA), which increased by 1,979 filings. In February 2002, Attorney General John Ashcroft reorganized the BIA, instituting new case review guidelines and processing time standards. As a result, filings of appeals of BIA decisions soared 153 percent in 2002 to 4,449 appeals, climbed 99 percent in 2003 to 8,833 appeals, and increased 22 percent in 2004 to 10,812 appeals. This year, 50 percent of BIA appeals (5,368 appeals) were filed in the Ninth Circuit, and 24 percent (2,632 appeals) were filed in the Second Circuit.”

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