D.C. Circuit Review – Reviewed: 20 Thoughts for a Cold December Day

by Aaron Nielson — Friday, Dec. 1, 2017@Aaron_L_Nielson

I haven’t counted but I suspect — with the possible exception of symposium weeks — that this week has been the busiest in the history of Notice & Comment. We have had posts aplenty about the CFPB. There was a mini-debate about whether Chenery II poses a threat to liberty (Richard Pierce says “never,” I say “sometimes”). We’ve had two important posts on SEC ALJs.* We’ve also had posts on taxes, patents, presidential immunity, and the Administrative Conference. After all of that, is there really anything left to say?

Yes, actually. Here are twenty thoughts for a cold December day.

  • (1) Congratulations Judge Greg Katsas. Enjoy life as the junior-most judge on the D.C. Circuit! Steel yourself, however, for the hazing — you know, carrying the Chief Judge’s briefing binder, bringing donuts and steamy drinks to after-argument conferences, and writing FERC opinions galore. (I kid, except about FERC. See Points 8 & 13, infra.)
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    • (2) Now that Judge Janice Rogers Brown has retired, it may be harder for students who did not go to Yale/Harvard/Stanford/Chicago to clerk on the D.C. Circuit. Judge Brown made it a point to hire from a variety of law schools; that practice made hiring a bit more difficult, but she was right to do it.
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      • (3) Read this amicus brief. Perhaps there is a good argument against Professor Bamzai’s analysis, but his jurisdictional objection — based on Marbury v. Madison itself — to the Supreme Court’s ability to directly review decisions of the Court of Appeals for the Armed Forces is not frivolous.
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        • (4) Last month, Judge Stephen Williams of the D.C. Circuit blogged here at Notice & Comment. We appreciate it and he has a standing invitation to return.
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          • (5) This week, Judge Brett Kavanaugh of the D.C. Circuit blogged at Lawfare. Give it a read; it is well done. But don’t forget that we had a blogging D.C. Circuit judge first! (Of course, it is certainly possible that yet another judge blogged before both of them.)
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            • (6) Those who do not follow courts closely often have an exaggerated sense of how much disagreement there is. In truth, judges often agree. This week, the en banc D.C. Circuit unanimously rejected a campaign-finance challenge. In Holmes v. FEC, Judge Srinivasan, writing for the entire Court, declined the plaintiffs’ “invitation to upend the per-election structure of [the Federal Election Campaign Act]’s base limits on individual contributions to candidates.” The plaintiffs wanted to contribute $5,200 to the general election campaigns of various candidates, even though the law only allows up to $2,600 per election (so $5,200 for both a primary and a general election). The Court concluded that FECA’s per-election structure is constitutional.
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              • (7) I stumbled across this line from a transcript of one of the Supreme Court’s arguments this week. I realize it is a joke and context matters, but isn’t that “laughter” more than a bit chilling? Shouldn’t there be many (indeed, many many many) things that the Supreme Court can’t do?
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                Oral Argument Yes

                 

                • (8) Dear Judge Katsas — this is what you are in for. In State Corp. Commission of Kansas v. FERC, Judge Williams (joined by Judges Kavanaugh and Millett) denied Kansas’s petition to review FERC’s approval of Southwest Power Pool’s (“SPP”) “revisions to its tariff” after agreeing to integrate facilities with the adjacent regional transmission organization (“RTO”) of Integrated System (“IS”). Kansas argued that FERC “wrongly accepted a rate structure that disadvantaged the SPP participants”; “unreasonably accepted data challenged by Kansas” about the “benefits that the merger afforded SPP”; and “fail[ed] to conduct an evidentiary hearing in the face of factual disputes.” The Court rejected the first argument because the integration agreement was “reciprocal” and the result of “a negotiated cost allocation.” The Court rejected the subsequent arguments because even omitting the study, “the integration would result in a substantial net benefit for SPP members.” Likewise, “Kansas … points to no vulnerability … that could be better resolved with cross-examination than with analysis of the written testimony itself in light of all the information before the Commission.” Got it?
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                  • (9) If the Supreme Court hears argument in the SEC ALJ fight and appoints an amicus, I wonder who it will be. I can think of many excellent “admin law” attorneys who would do a great job, even though it strikes me as a tough position — as they often are.
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                    • (10) Did you know there was a draft indictment prepared in the 1990s for Hillary Clinton? I didn’t. Well, what did it say? We don’t know and probably never will. In Judicial Watch, Inc. v. NARA, Judge Rogers (joined by Judges Tatel and Silberman) denied a FOIA request about a “draft indictment” relating to “Hillary Rodham Clinton’s relationship[] with . . . Whitewater Development Corporation . . . .” The Court reasoned that “'[w]here individuals have been investigated but not charged with a crime, disclosure … represents a severe intrusion on the privacy interests of the individual[] in question.’” After all, “[a]n unissued draft indictment by definition contains unproven allegations that were never adopted by the Independent Counsel much less by a grand jury.” In balancing the privacy interests with the public interests, the Court reasoned that “[m]ere ‘general public curiosity’ is not enough” and that “Judicial Watch has not identified what additional insights the public would glean from disclosure . . . where voluminous information about the Independent Counsel’s investigation has been released.”
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                      • (11) I’m still collecting names of former D.C. Circuit law clerks who have become law professors. If you have names, please send them along or include them in the comments.
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                        • (12) Point 11, supra, may be related to Point 2, supra. If we hope to expand the pool of law professors — which strikes me as wise; Yale, Harvard, Stanford, and Chicago do not have a monopoly on ideas — then it is important to expand the pool of circuit court clerks, including D.C. Circuit clerks. A few more clerks (and so eventually law professors and perhaps beyond!) who have spent real time in “flyover country” wouldn’t be a bad thing. Ditto Alaska, Hawaii, and elsewhere still. To be sure, I don’t want to overstate my point: it is possible to have done both — to have graduated from one of those schools and lived outside of the I-5 or I-95 corridors. Plus I suppose good folks sometimes grow up New York City too. 😉 Even so, ours is a big country and greater intellectual and experiential variety would do us all well.
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                          • (13) More FERC. In Association of Oil Pipe Lines v. FERC, Judge Edwards (joined by Judges Kavanaugh and Srinivasan) denied AOPL’s petition to review FERC’s order setting the “formula [the Commission] utilizes to set the annual index” for the “ratemaking system to govern oil pipeline rates.” The Court found that FERC’s decision was not “arbitrar[y] and capricious” even though it “relied solely on the middle 50 percent pipeline cost-change data”; “the Commission’s past index review order [did not bind] the agency to use the middle 80 percent . . . data in any later proceeding.” (The Court also found that FERC’s decision to rely on Page 700 instead of Form No. 6 “was entirely reasonable” because the “Page 700 data will better suit the index’s aim of reflecting changes to recoverable costs.” Read the opinion to understand what any of this means.)
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                          • (14) In a couple of weeks, the Administrative Conference will host another plenary session. I’m going to present my research on waivers, exemptions, and prosecutorial discretion. I’m also going to vote as a new public member. Wait! Is that okay? Thankfully, it is not okay. I can vote on the other agenda items but am “disqualified” from voting on the very report I helped author. Makes sense. My friend and co-blogger Emily Bremer (another new public member) has helpfully posted the topics to be discussed.
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                          • (15) The Historical Society of the District of Columbia Circuit does great work. I regret not posting about a recent reception for former clerks. The Society’s webpage is also a wonderful resource. I just stumbled across, for instance, this interview with Judge Bork. You can also learn about Judges Mikva, Randolph, Buckley, MacKinnon, and others.
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                          • (16) Text matters. In Fourstar v. Garden City Group, Inc., Judge Kavanaugh (joined by Judges Millett and Williams) determined that under the text of the Prison Litigation Reform Act, a dismissal “does not count as a strike” when the court “declines to exercise supplemental jurisdiction over state-law claims.” Here is a line that will be quoted in future briefs: “It is not a judge’s job to add to or otherwise remold statutory text to try to meet a statute’s perceived policy objectives. Instead, we must apply the statute as written.”
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                          • (17) Precedent matters too. In Schermerhorn v. State of Israel, Judge Tatel (joined by Judges Rogers and Edwards) concluded that a suit could not be brought against Israel. In 2010, a U.S.-flagged shipped en route to the Gaza Strip as part of a political protest was detained in international waters by Israeli Defense Forces. Plaintiffs say that was unlawful, but Israel asserted sovereign immunity under the Foreign Sovereign Immunities Act of 1976 (“FSIA”). “Plaintiffs responded that the FSIA’s ‘non-commercial torts’ and ‘terrorism’ exceptions allowed the district court to exercise jurisdiction,” but the district court found neither applies. The Court affirmed. Regarding the non-commercial torts exception, the Court applied precedent to conclude that “U.S.-flagged ships on the high seas do not fall within the FSIA’s non-commercial torts exception” because “the term ‘United States’ in the FSIA … include[s] only the geographic territory of the United States.” Regarding the terrorism exception, the Court concluded that despite a potential textual argument to the contrary, “the FSIA’s terrorism exception continues to apply only to a foreign state ‘designated as a state sponsor of terrorism at the time the act . . . occurred, or was so designated as a result of such act.’” (This one is really fascinating; statutory interpretation professors may want to assign it.)
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                          • (18) We should say “I’m sorry” more often — and really mean it. (This may sound flippant, but it’s not: I’m sorry for not saying “I’m sorry” much more often than I do.) And we should say more nice things to others — and also really mean it. To tie this point to the D.C. Circuit, Judge Harry Edwards has often emphasized the importance of collegiality. He’s right — and saying “I’m sorry” and “thank you” are an important part of being collegial.
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                          • (19) Be careful what you say in court. In United States v. King-Gore, Judge Williams (joined by Judges Srinivasan and Randolph) vacated the appellant’s sentence and remanded the case for resentencing. Appellant challenged his sentence based on “the government’s breach of its agreement . . . not to use against him any incriminating statements he provided during a confidential debriefing session.” On appeal, the Court explained that “there is at least a reasonable likelihood that King-Gore would have received a lower sentence in a proceeding untainted by the government’s violation.”
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                          • (20) I wonder if the D.C. Circuit will get a chance to weigh-in on the CFPB “acting director” fight. Perhaps the issue will be moot before that ever happens. Like everyone else, I’m also waiting for the en banc Court’s decision in PHH Corp.
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                            Have a wonderful weekend. (You know, it actually isn’t all that cold today in Provo. But snow is coming soon.)

                             

                            UPDATE: This post was edited for clarity and, in fact, it should have been 21 thoughts! I ought to have included this shout-out to the D.C. Circuit in a different Supreme Court transcript from this week:

                            Oral Argument Randolph

                             

                            * My prediction now? The Supreme Court will grant cert — but GVR.

                             

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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One thought on “D.C. Circuit Review – Reviewed: 20 Thoughts for a Cold December Day

  1. Andy Patterson

    What is Judge Brown doing in retirement? Did she stay in the DC area or return to California? Any volunteer work?

    Reply

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