In the first week of July, the D.C. Circuit issued five administrative-law opinions. First, in Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, the court vacated an order that involved late fees for borrowed shipping containers. In April 2020, an ocean carrier (Evergreen) gave several loaded shipping containers to a trucking company (TCW) at […]
An internal rule of the D.C. Circuit encourages the circulation among the panel of all opinions for the previous term by August 15 of each year. Which means that July and early August can be stressful times in chambers. They certainly were in mine because, try as I might, I never mastered the skill of […]
The D.C. Circuit issued ten opinions last week, nine of which involved administrative law. We have three FERC opinions, two NLRB opinions, and one each about FCC, FDA, FEC, and DHS. Buckle your seatbelts, it’s going to be a long post. Beginning with the FERC cases: In Shell Energy North America v. FERC, the D.C. […]
While some other things were happening last week in administrative law, the D.C. Circuit decided four cases of note. The first one involved a (Chevron-free) disagreement over the meaning of the Mining Law of 1872. In Earthworks v. Department of the Interior, a divided panel affirmed the entry of summary judgment for the Interior Department in a […]
The D.C. Circuit released eight opinions last week, including one under seal. The subjects ranged widely and included contract law, personal jurisdiction, insurance law, a defamation action, and the Speech or Debate Clause. In Husky Marketing and Supply Company v. FERC, the D.C. Circuit denied petitions for review of FERC orders approving rates for crude-oil […]
Only two true admin law opinions among the D.C. Circuit’s six decisions last week, both involving FERC. In the first FERC case, N.Y. State Public Service Comm’n v. FERC, No. 23-1192, the agency survived a challenge to a flip-flop in agency positions by a 2-1 vote. The majority opinion, written by Judge Randolph, noted that […]
My former colleague and good friend Judge David Tatel has been in the headlines of late with the release of his memoir, Vision: A Memoir of Blindness and Justice. The articles about the book that I have read have, predictably, focused on Judge Tatel’s criticism of the Roberts Court. See, e.g., Ann Marimow’s article in […]
In Absolute Healthcare v. NLRB, the D.C. Circuit granted a petition to review (in part) an NLRB order finding that an employer committed unfair labor practices and ordering various remedial measures. But to describe the decision in this way is to obscure a rather unusual feature of the case. Here is how Judge Walker, in a […]
The D.C. Circuit published one administrative-law opinion last week: Novartis Pharmaceuticals Corp. v. Johnson. Section 340B of the Public Health Service Act requires drug manufacturers to sell certain drugs to certain healthcare providers at a steep discount. Many of these providers contract with pharmacies to help distribute the discounted drugs to their patients. But those […]
The D.C. Circuit released six published opinions last week, including the latest challenge to EPA’s Renewable Fuel Standard (RFS) program and an appeal involving the scope of the consultant corollary to FOIA Exemption 5. First, in Sinclair Wyoming Refining Co. v. EPA, the court denied several petitions for review of EPA’s RFS rulemaking for 2020, 2021, […]
The D.C. Circuit published three opinions last week. United States v. Bannon was the most newsworthy of last week’s cases. Steve Bannon was subpoenaed to testify before Congress. He refused, citing advice of counsel. In 1961, the D.C. Circuit held that there is no “advice of counsel” defense to prosecution for contempt of Congress. In […]
Not much of a unifying theme in the past week’s D.C. Circuit decisions. The most significant decision was likely Farhy v. Commissioner of Internal Revenue, No. 23-1179, where the court (Judge Pillard writing) held that the IRS can assess and administratively collect penalties for failure to file information returns regarding ownership of foreign businesses. The […]
While all eyes and ears were on the oral arguments before the Supreme Court in Trump v. United States, No. 23-939, the D. C. Circuit’s landmark decision regarding presidential immunity, the court went about its normal business, issuing three opinions on matters less grand but important nonetheless. The Federal Service Labor-Management Relations Statute authorizes aggrieved […]
Last week was criminal law week at the D.C. Circuit. All three opinions issued in criminal appeals. I’ll turn to those shortly, but first something a little closer to this blog, if a bit further back in time: two weeks ago, fellow blogger, Judge Thomas B. Griffith, visited Mizzou Law School to speak about our […]
The D.C. Circuit decided two cases last week, National Association of Realtors v. United States, and Hikvision USA, Inc. v. FCC. In National Association of Realtors, appellee—a trade association for the real-estate industry—sought to set aside a subpoena issued by DOJ’s Antitrust Division after the Division closed and then reopened an investigation into some of […]