Notice & Comment

D.C. Circuit Review – Reviewed: You Don’t See This Everyday

I wasn’t planning on writing a post today. But wow — what an unusual day in the D.C. Circuit.*

Let’s start with United States v. Scurry (also known as “E”). Here is how the per curiam (Judges Millett, Pillard, and Katsas) begins:

I’ve never seen that before. It gets more interesting, though. Eric Scurry’s counsel was too busy for trial, so the lawyer’s spouse — also a lawyer — appeared in his place. Rather than proceed with trial, however, Scurry accepted a plea deal that limited his ability to challenge on appeal the denial of exclusion of evidence. On appeal, Scurry said that his new lawyer — his old lawyer’s spouse — “coerced him into pleading guilty.” Along the way, it turns out that Scurry may have a good argument that the evidence should have been excluded.

His new lawyer offered to continue representing him as he tried to challenge the introduction of the evidence. Scurry accepted the offer, and asked the district court to appoint her as counsel. The district court did so, but then later rejected Scurry’s effort to re-open his conviction because of the waiver of rights in his plea deal. Scurry then appealed, and the D.C. Circuit appointed his new lawyer to be his lawyer on appeal.

Turns out, that was a mistake:

And this:

This is a simplified version of the story; read the whole thing. But I can say with 100% confidence that I have never seen a case like this before.

Today’s other cases are also fascinating.

Leggett & Platt, Inc. v. NLRB, for example, is well worth your time if you follow labor law. For the rest of us, Judge Sentelle (joined by Chief Judge Srinivasan and Judge Rao) had some harsh words for the agency:

Not good. Nor this: “It is not clear how an agency departing from its controlling precedent escapes the bonds of the arbitrary and capricious standard by reciting a conclusion without explanation. To say that this was an adequate explanation would gut that standard of all meaning.”

Next, I’ll make a prediction: We haven’t heard the last of Chambers v. District of Columbia. Here, a per curiam panel (Judges Tatel and Ginsburg — Judge Garland was part of the panel, but didn’t participate in the opinion) quickly applied longstanding D.C. Circuit precedent to conclude that “purely lateral transfer requests” are not subject to Title VII. But then this:

That’s not an Irons Footnote, but if someone wants precedent changed, it is surely the next best thing.

Finally, the last opinion of the day is International Transmission Company v. FERC (per Judge Pillard, joined by Judge Rogers). This is a lengthy, technical ratemaking opinion. At first blush, I thought it would be pretty dull. But then I came to the end. Evidently, FERC “must show that an existing rate is unlawful before ordering a new rate.” Here, in doing that, FERC did not “use the words ‘unjust and unreasonable’ at the first step.” The panel did not find that error fatal: “[B]ecause FERC granted a complaint that itself explicitly alleged the existing adders were unjust and unreasonable and its analysis tracked the two-step procedure of Section 206, its failure to use the magic words … did not reflect a fatal flaw in its decision.”

Judge Sentelle dissented:

And then this:

This isn’t the first opinion that mentions Ali Baba and the Forty Thieves, but it is pretty darn close.

* The week has been pretty interesting too, especially including this case, which is a true “must read” if you follow administrative law.

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 every once in a while.

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