Notice & Comment

Fifth Circuit Review-Reviewed: Article III Cowboy Hat Tips and D.C. Circuit Exceptionalism

After a longer-than-I-would-have-liked break, I’m back with another installment of Fifth Circuit Review—Reviewed. This post will be longer than usual because so much has happened since my last update. I think I’ll start where Aaron Nielson’s most recent D.C. Circuit Review—Reviewed left off. Aaron discussed Judge Tatel’s opinion in Save Jobs USA v. DHS, No. 16-5287 (D.C. Cir. Nov. 8, 2019), which concluded that “an association representing Southern California Edison workers” has Article III standing to challenge a “rule that permits certain visa holders to seek lawful employment.” In Center for Biological Diversity v. EPA, 937 F.3d 533 (5th Cir. Aug. 30, 2019), the Fifth Circuit reached the opposite conclusion regarding several environmental organizations’ associational standing to challenge an EPA order granting a permit for various oil and gas operations in the Gulf of Mexico.

After holding that petitioners had failed to demonstrate injury in fact, the Court explained that they had also failed to demonstrate causation. Petitioners argued that the causation standard should be relaxed because their case involved “procedural rights.” The Court acknowledged that “procedural rights cases are different” but rejected petitioners’ argument anyway, relying on the D.C. Circuit’s explanation of the rule “in the canonical procedural-rights case”—Florida Audubon Society v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc).

Judge Tatel, it turns out, joined the dissent in Florida Audubon. So, who wrote the opinion for the en banc Court, you ask? I’ll give you three hints: (1) he takes off his white cowboy hat when he sits to have his portrait painted; (2) he sings Willie Nelson whenever he feels like it (which is often), and (3) he doesn’t mess around when it comes to constitutional standing. I am, of course, talking about my former boss, Judge David B. Sentelle. Here is the Fifth Circuit’s Article III cowboy-hat tip to Judge Sentelle:

Petitioners urge us to “relax[ ]” their causation obligations because this is a procedural-rights case under NEPA. It is true, procedural-rights cases are different: When a petitioner challenges an administrative agency’s failure to satisfy a procedural requirement—like NEPA’s EIS requirement—“the primary focus of the standing inquiry is not the imminence or redressability of the injury to the plaintiff, but whether a plaintiff who has suffered personal and particularized injury has sued a defendant who has caused that injury.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc). Judge Sentelle explained the rule in the canonical procedural-rights case:

As in all cases, standing in an EIS suit requires adequate proof of causation. The conceptual difficulty with this requirement, in this type of case, is that an adequate causal chain must contain at least two links: one connecting the omitted EIS to some substantive government decision that may have been wrongly decided because of the lack of an EIS and one connecting that substantive decision to the plaintiff’s particularized injury.

Id. at 668.

The Court concludes with another great line from Judge Sentelle:

In our Government, there are entities that address environmental issues outside of the case-or-controversy constraint. This Court is not one of them. As Judge Sentelle put it many years ago: “The federal judiciary is not a back-seat Congress nor some sort of super-agency.” Fla. Audubon Soc’y, 94 F.3d at 672.

What are we to infer from all of this? Does the Fifth Circuit’s invocation of Florida Audubon prove that the D.C. Circuit really does stand head and shoulders above its sister circuits as the “second most important court in the land”? Maybe, but I doubt it. Biased though I may be, I think it has more to do with the fact that Judge Andy Oldham—the author of the Fifth Circuit’s opinion in Center for Diversity—spent a year clerking for Judge Sentelle.

How Administrative Law Differs Across U.S. Courts of Appeals and a Critique of D.C. Circuit Exceptionalism

Speaking of (mis)perceptions of the relative importance/expertise of different federal appellate courts, Aaron Nielson is moderating a fascinating panel at the ABA’s Administrative Law Conference this Friday on “How Administrative Law Differs Across U.S. Courts of Appeals.” He will be discussing the issue with my other former boss, Judge Jennifer Walker Elrod of the Fifth Circuit, Judge A. Raymond Randolph of the D.C. Circuit, and Judge Ryan D. Nelson of the Ninth Circuit. I’m really disappointed that I can’t make it to D.C. for the conference this year to see the conversation in person, and my overwhelming FOMO compels me to weigh in on the topic.

The simplest and most concrete contribution I have to offer is my list of adlaw circuit splits, which is available here. What better way to see the difference in approach among the circuit courts than focusing on where exactly they disagree on discrete legal issues?

Another easy-to-see difference that really matters is the rules. There is a fairly significant level of variation among the courts of appeals with respect to the rules and processes used to decide adlaw issues. Relatedly, variation in background circuit precedent can also make a difference. In the Fifth Circuit, for example, alternative holdings are binding just as much as primary ones. In many (all?) other circuits, alternative holdings are treated as obiter dicta. Other examples include: how rigorously does each circuit scrutinize the factual bases for standing? What does or doesn’t count as a “traditional tool of construction” under that particular circuit’s precedent? Under what circumstances are “unpublished” decisions precedential? Etc.

As important as those distinctions are, I’d like to focus on the D.C. Circuit’s reputation as the “best” and/or “most important” adlaw court in the country. This phenomenon, which I call “D.C. Circuit Exceptionalism” is invariably rooted in some form of the following argument:

  1. Because of its “adlaw heavy docket,” the D.C. Circuit decides a higher number of “very important” cases involving the most complex and important legal issues our nation faces;
  2. The D.C. Circuit’s specialization in these most important and complex adlaw cases necessarily gives rise to enhanced adlaw expertise and competency;
  3. And because the Supreme Court so rarely reverses the D.C. Circuit, the D.C. Circuit often has the final say in these important cases.
  4. When you add all that up (a monopoly over the important cases; expertise in deciding them correctly; and having a final say over so many of them), the argument goes, it’s hard to deny that the D.C. Circuit is the “second most important court in the land.”

I’m not convinced. For starters, the D.C. Circuit’s docket is only proportionally more adlaw-heavy than the dockets of other federal appellate courts. Truth is, several other circuits decide far more admin cases each year. If practice makes perfect, one would think those courts would have more—not less—admin expertise than the D.C. Circuit. Don’t believe me? Let’s take a look at the scoreboard.

The following statistics come from decisions in cases terminated on the merits during the 12-month period ending June 30, 2019. During that period, 5,741 administrative agency appeals were filed in federal appellate courts nationwide; 2,977 were terminated on the merits. In the D.C. Circuit during the same period, 285 were filed and 119 were terminated on the merits. The Fifth Circuit saw far more: 505 filed; 196 terminated on the merits. The Ninth Circuit saw by far the most administrative agency appeals: 2,810 filed; 1,488 terminated. These statistics demonstrate that the D.C. Circuit’s docket is “adlaw heavy” not because it decides more adlaw cases, but instead because it decides far fewer cases overall and faces other complex and important areas of law (complex commercial, maritime, state habeas, etc.) far less often than other courts of appeals.

Nor are the adlaw decisions of other circuit courts any less final than the D.C. Circuit’s. Finality on adlaw questions is supposed to make the D.C. Circuit more important than its sister courts because admin questions are thought to be more important than any other questions American courts face. Ignoring the obvious questions that assumption raises (why assume federal questions are more important than state law questions? More important to whom? More important in what way? etc.), if it were true, it would lead to the bizarre result that the D.C. Circuit is somehow more important than the Supreme Court of the United States but less important than other circuit courts. After all, the D.C. Circuit issues more ultimately final adlaw decisions than the Supreme Court but fewer than its sister circuits. That can’t possibly be right.

To be clear, I’m not denying that the D.C. Circuit is exceptional. I just think it is exceptional for a different set of reasons. First and foremost, the D.C. Circuit is special because Congress says so. The U.S. Code is littered with judicial-review provisions giving the D.C. Circuit exclusive jurisdiction over an undeniably important subset of the administrative-law questions arising in the federal system. This article provides a great discussion of the D.C. Circuit’s unique jurisdiction.

Second, the D.C. Circuit’s judges are different. The vast majority have experience working in the Department of Justice, another federal agency, and/or academia. The Fifth Circuit (like other federal appellate courts) has judges from a much wider variety of backgrounds. And because of the D.C. Circuit’s perception as “the second most important court in the land,” the confirmation process for D.C. Circuit nominees is especially political—a reality that undoubtedly impacts who gets nominated (and ultimately confirmed) for that Court.

Third, the law clerks are different. In my experience, judges on the D.C. Circuit tend to place more emphasis on a candidate’s adlaw acumen and interest whereas the interview process in other circuits tends to focus more on statutory interpretation, constitutional law, and judicial philosophy more generally.

Fourth, the lawyering at the D.C. Circuit is different. The average brief I saw while clerking at the D.C. Circuit was much better than the average brief I saw at the Fifth Circuit. It seemed like every other brief I picked up at the D.C. Circuit was written by a future first-ballot Appellate Hall of Famer. I saw some very good briefing at the Fifth Circuit, too, just not as often. Add to that the fact that many (if not most) cases at the D.C. Circuit came with a set of helpful amicus briefs from concerned law professors, environmentalists, industry groups, etc. And to top it all off, because of the more relaxed pace at the D.C. Circuit, I had time to read and obsess over it all to my heart’s content long before oral argument. Not so at the faster-paced Fifth Circuit.

Fifth, the D.C. Circuit has a unique relationship with the Supreme Court. More judges make their way to the Supreme Court from the D.C. Circuit than from any other circuit. Relatedly, the Supreme Court hires more law clerks from the D.C. Circuit than from any other court. Finally, the Supreme Court bar overlaps with the D.C. Circuit bar to a greater extent than that of any other federal court. Add all that up and the D.C. Circuit judges decide cases with a unique confidence that if their decisions are reviewed, that review will be conducted by jurists with backgrounds similar to theirs, aided by law clerks who often just finished working for them, and on the basis of arguments from the same counsel they see every day. Is it any surprise, then, that the D.C. Circuit has the lowest reversal rate among federal appellate courts?

In sum, D.C. Circuit Exceptionalism is rooted in myth. The D.C. Circuit does stand alone among federal appellate courts but for reasons that have gone largely unnoticed:

  1. Fewer adlaw cases;
  2. More time to decide each case;
  3. A team of adlaw-obsessed law clerks to help;
  4. Better briefing, usually from the very best appellate lawyers in the nation;
  5. More frequent amicus participation; and
  6. A sort of home-field advantage at the Supreme Court.

En Banc Decisions and Other Cases in the News

Now that I’ve climbed down from my D.C. Circuit-Exceptionalism soap box, let’s dig into some more Fifth Circuit cases. I’ll start with very brief descriptions of some of the cases that have already been discussed in more depth elsewhere:

  1. In seven opinions spanning more than 150 pages, the Court, in Collins v. Mnuchin, 938 F.3d 553 (5th Cir. 2019) (en banc), the Court held that the Federal Housing Finance Agency’s structure violates constitutional separation of powers principles. The Court also held that the plaintiffs stated a plausible claim that FHFA’s agreement to hand over all of Fannie Mae and Freddie Mac’s net worth to the Department of Treasury violated the Housing and Economic Recovery Act. In so holding, the Fifth Circuit departed from the holdings of five other circuits. My attempt to “summarize” the various opinions is available here.
  2. The Court granted rehearing en banc in Brackeen v. Barnhardt, 937 F.3d 409 (5th Cir. 2019), which affirmed the constitutionality of the Indian Child Welfare Act. My analysis of the divided panel opinion is available here.
  3. The Court denied rehearing en banc in in Inclusive Communities Project, Inc. v. Lincoln Property Co., 920 F.3d 890 (5th Cir.  2019). I covered that case in the inaugural edition of Fifth Circuit Review—Reviewed, and my commentary on Judge Haynes’s opinion dissenting from the denial of rehearing en banc is available on my blog here. Among other things, she emphasizes is that that the fact that this case arose in the Fifth Circuit as opposed to, say, the D.C. Circuit, makes the it more important because it will the panel decision will “hamper[] enforcement of the FHA in three states that have numerous large cities, including three of the top ten most populous cities in the country.”
  4. In Clean Water Action v. EPA, 936 F.3d 308 (5th Cir. 2019), the Court denied the petitions of several environmental groups that sought review of EPA’s final order revising the compliance dates for new best available technology effluent limitations and pretreatment standards for waste streams from steam electric power generating point sources under the Clean Water Act.
  5. In Sierra Club v. EPA, 939 F.3d 649 (5th Cir. 2019), the Court denied petitions from both environmental and industry groups seeking review of a December 21, 2017 Final Rule in which EPA approved Louisiana’s state implementation plan for controlling regional haze.

An Interesting Application of the First-to-File Rule

Next, we have Wynnewood Refining Co., L.L.C. v. OSHRC, 933 F.3d 499 (5th Cir. 2019). Here’s how Judge Costa frames the issue:

Appeals of some agency rulings must be filed in only one court of appeals, often the D.C. Circuit. See, e.g., 47 U.S.C. § 402(b) (restricting venue for appeals from certain FCC decisions to the D.C. Circuit). But sometimes a party appealing an agency ruling has multiple circuits to choose from. That is the case for decisions of the Occupational Safety and Health Review Commission, which may be challenged in the circuit where the alleged safety violations occurred, where the employer has its principal office, or in the D.C. Circuit. 29 U.S.C. § 660(a); see also 29 U.S.C. § 660(f) (providing similar venue options for appeals of National Labor Relations Board decisions). What happens when different parties appeal the same Commission ruling in different circuits? Because the employer filed this appeal in the Fifth Circuit while the Secretary of Labor appealed the same agency ruling in the Tenth Circuit, we must answer that question.

The Secretary of Labor issued Wynnewood Refining multiple citations alleging safety violations at its Oklahoma refinery. Wynnewood contested the citations and achieved partial success before the agency. “This mixed result prompted both the Secretary and Wynnewood to seek judicial review.” The Secretary appealed to the Tenth Circuit, and Wynnewood appealed to the Fifth Circuit. What to do?

Where, as here, multiple appeals challenging the same ruling are filed in multiple circuits and none is filed within ten days of the challenged agency action, the Commission “shall file the record in the court in which proceedings with respect to the order were first instituted.” 28 U.S.C. § 2112(a)(1). Once the agency properly files the record, all courts other than the one in which the record is filed must transfer those proceedings to the court in which the agency filed the record. In this case, the Secretary was the first to file. Instead of filing the the record in the Tenth Circuit as the statute required, however, the Commission filed the record in both circuits and—get this—its Fifth Circuit filing was time stamped by the Clerk before its Tenth Circuit filing.

Wynnewood argued that the Fifth Circuit should hear the appeal because the duty of determining who was first to file falls, under the express provisions of 28 U.S.C. § 2112(a), on the agency whose proceedings are under review. The Court disagreed, explaining that “letting the agency decide the forum would be at odds with the statute’s text, which states that the Commission ‘shall file the record in the court in which proceedings . . . were first instituted.’” (quoting 28 U.S.C. § 2112(a)). Accordingly, the Court granted the Secretary’s motion to transfer the appeal to the Tenth Circuit.

Finality, Agency Interpretations of the Federal Rules, and a Circuit Split

The next case, Texas v. EEOC, No. 18-10638 (5th Cir. Aug. 6, 2019), involves an interesting finality issue. The Court enjoined the EEOC and the Attorney General from enforcing a 2012 EEOC guidance document regarding employers’ use of criminal records in hiring. Two things make this case unique and interesting. First, the Court permitted Texas to challenge the Guidance even though EEOC can’t bring an enforcement action against a state under Title VII. And second, because the Guidance binds EEOC staff, the Court held that it is both “final agency action” subject to judicial review under the APA and a substantive rule that exceeds EEOC rulemaking authority under Title VII. A more in-depth discussion of the decision is available here.

In Coleman Hammons Construction Co. v. OSHRC, No. 18-60559 (5th Cir. Nov. 6, 2019), Coleman Construction sought to challenge four OSHA citations it had received for safety violations that allegedly occurred at one of the company’s worksites. An ALJ and the OSHRC agreed that the challenge should be dismissed as untimely. Coleman didn’t dispute that its notice of contest arrived 18 working days after the statutory deadline. 29 U.S.C. § 659(a). Instead, Coleman argued that its error amounted to “excusable neglect” and deserved relief from the statutory under Federal Rule of Civil Procedure 60(b)(1), which applies to Commission proceedings. Id. § 661(g).

The Commission acknowledged that Coleman was acting in good faith; no prejudice resulted from the delay; and the Secretary stipulated that the company “has a meritorious defense.” Nonetheless, the Commission concluded the company’s failure was inexcusable because Coleman could have avoided the delay had it exercised reasonable diligence. The Commission explained that Pioneer Invest. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993), established an equitable, multi-factor test for assessing whether delay was due to “excusable neglect.” Nevertheless, the Commission enforced its longstanding rule that the “key” consideration is whether the delay was within the reasonable control of the movant and, on that basis, affirmed the ALJ’s decision refusing to hear Coleman’s defenses.

The Fifth Circuit in an opinion by Judge Jones held that the Commission erred in placing virtually exclusive emphasis on the reason for Coleman’s delay instead of balancing all of the equitable factors identified in Pioneer. Applying the proper totality of the circumstances standard itself, the Fifth Circuit concluded that the Commission’s refusal to hear Coleman’s defenses was an abuse of discretion. The Court also dropped this interesting footnote:

We note that a circuit split exists regarding whether the Commission may use Rule 60(b) to grant relief following an untimely notice of contest. Compare Chao v. Russell P. Le Frois Builder, Inc., 291 F.3d 219, 228-29 (2d Cir. 2002) with J.I. Hass Co., Inc. v. OSHRC, 648 F.2d 190, 194 (3d Cir. 1981). Here, however, we assume arguendo that Rule 60(b) applies because the parties do not contest its applicability.

Judge Jones concurred separately to note that the “deeper reason for our overruling the Commission lies in its failure to conform its approach to Pioneer with the default judgment case law prevalent under Rule 60(b)(1).” I have more commentary on the case, including Judge Jones’s interesting take on judicial deference to agency interpretations of the Federal Rules here.

SEC Proceedings and Immigration

In SEC v. Team Resources Inc., No. 18-10931 (5th Cir. Nov. 5, 2019), the Fifth Circuit addressed a question expressly left open by Kokesh v. SEC, 137 S. Ct. 1635 (2017): whether district courts have authority to order disgorgement in SEC proceedings. The Supreme Court recently granted certiorari to answer that question in Liu v. SEC, 2019 WL 5659111 (U.S. Nov. 1, 2019) (No. 18-501). But because the Fifth Circuit continues to follow its own binding precedent in such circumstances, the Court did just that in Team Resources and affirmed the district court’s disgorgement order.

The Court also decided several important immigration cases since my last update. This post is already too long, though, so if you want to read more about them please see my commentary herehere, and here.

About Shane Pennington

In addition to practicing appellate law at Yetter Coleman LLP in Houston, Texas, Shane reports on the administrative-law decisions of the U.S. Court of Appeals for the Fifth Circuit at his blog: He has also served as a law clerk to then-Chief Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the Fifth Circuit, and then-Chief Judge Royce C. Lamberth of the D.C. District Court. All views are the author’s alone. Follow him on Twitter @admindotlaw.

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