Notice & Comment

D.C. Circuit Review – Reviewed: Why Not Another Round of the * Game?

From time to time, I like to play the * Game here at D.C. Circuit Review — Reviewed.* The game comes from the D.C. Circuit rule that “an asterisk may be placed next to those authorities on which the brief principally relies, together with a notation at the bottom of the first page of the table stating: ‘Authorities upon which we chiefly rely are marked with asterisks.’” Per the rules of the game, I’ve read all of the Court’s cases and identified the most important cited authorities. Looking at just the names of the authorities, can you tell what each case is about?

The * Game

Johnson v. Copyright Royalty Board and In re Sealed Case: Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Doe v. Mattis, 889 F.3d 745 (D.C. Cir. 2018).

Committee on the Judiciary v. McGahnRaines v. Byrd, 521 U.S. 811 (1997); Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct. 2652 (2015); Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

House of Representatives v. MnuchinCommittee on the Judiciary v. McGahn, — F.3d — (Aug. 7, 2020) (en banc).

AT&T v. FCCReiter v. Cooper, 507 U.S. 258 (1993); Verizon Tel. Cos. v. FCC, 269 F.3d 1098 (D.C. Cir. 2001); NetworkIP, LLC v. FCC, 548 F.3d 116 (D.C. Cir. 2008); United Video, Inc. v. FCC, 890 F.2d 1173 (D.C. Cir. 1989).

Al Bahlul v. United StatesAl Bahlul v. United States (Al Bahlul I), 767 F.3d 1 (D.C. Cir. 2014) (en banc); Al Bahlul v. United States (Al Bahlul III), 840 F.3d 757 (D.C. Cir. 2016); In re Al Nashiri, 835 F.3d 110 (D.C. Cir. 2016); Edmond v. United States, 520 U.S. 651 (1997).

Department of Medical Assistant Services v. HHS: Concourse Rehab. & Nursing Ctr., Inc. v. DeBuono, 179 F.3d 38 (2d Cir. 1999); Friedman v. Sebelius, 686 F.3d 813 (D.C. Cir. 2012).

Pacific Maritime Association v. NLRBNLRB v. Strong, 393 U.S. 357 (1969); Ford Motor Co. v. NLRB, 441 U.S. 488 (1979); Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951); M&G Polymers USA, LLC v. Tackett, 574 U.S. 427 (2015).

The answers:

Johnson and Sealed Case: I’m cheating here. I don’t think these two cases even involve the same subject — the panels are different. (Johnson was before Judges Henderson, Garland, and Millett; Sealed Case was before Judges Tatel, Millett, and Pillard.) So why did I lump them together? And why did I associate with with some some fairly disparate cases? Because they are under seal and we don’t know (yet, presumably) what they say.

Committee on the Judiciary: This one is too easy. You already know what this case is about just by its name. It is the en banc decision (authored by Judge Rogers) with dissents by Judges Henderson and Griffith. In other words, the panel dissent is now the majority and the majority is now the dissent. Here is Jonathan Adler’s summary. There almost certainly will be a cert petition so I suspect we’ll all hear more about this case. I want to focus, however, on Judge Griffith’s dissent. It is worth a read — it hits many of the themes that characterize his approach to the law. Here is a good line: “The court announces its ‘skepticism’ that ‘the separation of powers … bear[s] on whether the Committee has Article III standing.’ The Supreme Court might be surprised to hear that. Time and again, the Court has said that standing ‘is built on a single basic idea—the idea of separation of powers.’”

House of Representatives: I’m cheating again – but what can I do? The en banc Court sent this case back to the panel in light of Committee on the Judiciary. That prompted dissents, again, from Judges Henderson and Griffith. Here is a key line from Henderson’s dissent: “After two sets of briefing, two merits arguments and months of consideration, there is no reason that the parties should continue to languish without a definitive answer from this court.” And here is a key passage from Griffith’s dissent: “I would put an end to all these lawsuits now. I would definitively hold that disputes between the Legislative and Executive Branches simply do not belong in the federal courts. Barring that, I would dispense with the set of interbranch disputes that arise out of bare disagreements about the scope of the Executive Branch’s statutory authority. And barring that, I would dispense with those cases in which the House or Senate, by itself, seeks to assert the institutional interests of Congress as a whole.” This may be the last dissent ever from Judge Griffith. If so, he went out with a bang.

AT&T: This case contains a spirited fight about United Video, which holds that vacatur and remand “is not necessary” if “the agency has come to a conclusion to which it was bound to come as a matter of law, albeit for the wrong reason.” This footnote also stood out:

Judge Katsas ended up dissenting in part (which is presumably why the opinion is per curiam) because he believed the case is governed by the rule that “a Chenery remand ‘is not necessary’ if ‘the agency has come to a conclusion to which it was bound to come as a matter of law.”

Al Bahlul: It is also easy to guess what this case is about if you follow the D.C. Circuit — though you may not have expected Edmond to make an appearance. This is a Military Commissions case with an Appointments Clause twist. Judge Rao (joined by Judges Griffith and Edwards) ruled against the petitioner in almost all respects but harmless error (which will probably get most of the attention). Because this is a blog about administrative law, however, I’ll focus on the Appointments Clause. The Court held that a Convening Authority is an inferior officer because he or she is subject to the Secretary of Defense’s policies and regulations and can be removed by the Secretary at will. There is a lot more here; definitely worth a student note.

Department of Medical Assistant Services:  I didn’t recognize those cases either. But in terms of cases to cite, that’s about it. Chief Judge Srinivasan (joined by Judges Garland and Wilkins) upheld HHS’s decision to disallow some Medicaid reimbursements to Virginia.

Pacific Maritime Association: Judge Rogers (joined by Chief Judge Srinivasan and in part by Judge Rao) upheld the NLRB’s ruling that employers committed unfair labor practices. Judge Rao dissented in part because, in her view, the relevant collective bargaining agreement was silent or ambiguous as to the discipline imposed. At least I recognized a couple of these cases.

This was a pretty poor week for the * Game. It was either way too easy or way too hard. I suppose that rather than playing the game, you should just read the opinions — especially the en banc ones.

* Warning: It is not a fun game.

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