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

by Aaron Nielson — Friday, Jan. 18, 2019@Aaron_L_Nielson

I love snow. It’s wonderful to wake up in the morning and see the world covered in it. Everything looks the same … but different. The air smells better. My kids and I can throw snowballs and — if there is enough of it — even go sledding. Now, perhaps I wouldn’t love snow so much if there was snow all the time. And, true, not even I like to drive in the snow. And I also don’t like when it is too cold for snow to melt all the way, so after a week or so, the snow on the ground is a muddy mess. Even so, on the whole, I love snow.

This morning, I woke to snow. Even better, I didn’t expect it. Yesterday, there were rumors of snow, but just before going to bed, I checked the weather and the prediction was just rain. So with a sigh, I went to sleep, wishing it would snow. And then sure enough, it did. Trust me, unexpected snow is the best snow.

In the spirit of snow, I’ve decided to return to one of my favorite posts: 20 Thoughts for a Cold December Day. This week, I’ve been musing about what to say because there is so much going on. So why not say 20 things?

  • (1) The D.C. Circuit is still working through how to handle the shutdown. In Air Transport Association v. FAA, the Court again denied to stay a case. Judge Randolph again dissented, repeating his arguments from Kornitzky Group, LLC v. Daniel Elwell. He also cited other panel orders that granted stays and urged a “principled way of deciding these stay motions.” I don’t think his is an unfair criticism. Like claims should be decided alike. That said, the Court disagrees how they should be treated alike.
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    • (2) Judge Katsas has been a judge now for over a year. Here is an example of his handiwork. In People for the Ethical Treatment v. Department of Agriculture, the Court denied the government’s motion to stay oral argument. Katsas, despite misgivings, concurred because of Kornitzky. See (1), supra. He also says interesting things:
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      • (3) On the subject of new judges, when will Neomi Rao’s hearing be held? I’m curious to hear about how her time at OIRA will influence her approach to judging.
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        • (4) I quite enjoyed this quote from Jeff Lubbers’ post on Chief Judge Wald:
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          • (5) The Supreme Court heard oral argument this week in Azar v. Allina Health Services — out of the D.C. Circuit. This is very well worth your time to read or listen to; fascinating argument. I was surprised to see Chenery II make an appearance:
          • I went back and checked the briefs and sure enough, there is an interesting back-and-forth on Chenery II. For what it is worth, I think Chenery II is relevant to Auer deference. See Aaron L. Nielson, Beyond Seminole Rock; see also (18), infra.

             

            • (6) On the subject of Supreme Court oral argument, I also enjoyed a discussion about state versus federal courts. It reminded me of a passage from Martin v. Hunter’s Lessee.
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              Compare:

              With:

               

              • (7) Judge Sentelle is from North Carolina. Yet he will rule readily against North Carolina. For the Court, Sentelle, joined by Judges Wilkins and Katsas, ruled against the State in what appears to be a significant local case in North Carolina v. FERC. Here is a sample of the analysis: Although “the closure of Badin Works and the loss of jobs resulted in ‘a volcanic eruption … of anger’ in North Carolina that ‘became a major political issue,” the Court concluded that “FERC did not err in denying North Carolina’s federal recapture proposal” (i.e., “Under North Carolina’s proposal, the federal government would not ‘maintain’ or ‘operate’ the Yadkin Project, but instead transfer it to the state”).
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                • (8) On the subject of Judge Sentelle, he also authored an important Second Amendment case this week. In Medina v. Whitaker, Sentelle, joined by Judges Rogers and Pillard, held that it does not violate the Second Amendment to bar someone from gun ownership for a non-violent felony committed decades ago. Along the way, Sentelle offers an originalist analysis — including about the types of crimes that were capital offenses at the time of the founding. This area is not my expertise. But it seems to me that “con law” scholars should give this opinion a close read.
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                  • (9) I run the “D.C. Semester” for BYU Law. What that means is I help a handful of our students (usually about five, give or take) find full-time internships during the school year. They then take a class from me (either Federal Courts or Administrative Law) at night, sometimes via video conference and sometimes in person. The government shutdown has meant that a few of our students who arrived in DC this semester were not able to work. What to do? Thankfully, a number of offices — across the political divide — stepped forward to help our students by offering them short-term positions. We really appreciate it.
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                    • (10) On the subject of shutdowns, here is the current position of the D.C. Circuit as to Court operations:
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                      • (11) In Estate of Earnest Lee Boyland v. Department of Agriculture, Judge Pillard (joined by Judges Griffith and Sentelle) opened the Court’s opinion this way (if you have been following the “discrimination in USDA’s credit and benefit programs” cases — of which there many — then you should read this opinion):
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                        • (12) This tweet from Matt Schettenhelm is interesting. I’m surprised it was ever slated for a different courtroom. (I imagine that if you want to see the argument, you should arrive early.)
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                          • (13) I’ll repeat something I have said before — as a reminder to myself:
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                            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.

                          • (14) One of the Court’s judgements this week contained an interesting footnote:
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                          • (15) As I’ve said before, the Historical Society of the District of Columbia Circuit does great work. You’ll enjoy reading this, for instance. I also hope that Chief Judge Wald’s oral history is made available.
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                          • (16) The most interesting case, at least for me (because this is closer to my expertise), this week is San Diego Gas & Electric Co. v. FERC. Usually I’m not wild about FERC opinions — because of footnotes like this:
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                          • (17) San Diego Gas & Electric Co. isn’t like that. Sure, it is complicated, but complicated in a way that an ordinary person like me can sort out. This case is about incentives. Under the agency’s scheme, power companies can receive something called an “abandoned facilities incentive,” which allows for ratepayers to be charged for the project if it is abandoned for reasons beyond the utility’s control. In particular, FERC may allow the the utility to recover “100 percent of prudently incurred costs of transmission facilities that are cancelled or abandoned due to factors beyond the control of the public utility.” The question in this case is how that incentive works. FERC determined that the petitioner did not show that the incentive was necessary to encourage its investment before the relevant order. The Court (Judge Pillard,joined by Judge Rogers) upheld that order. Judge Randolph dissented. Here are a couple of quotes that illustrate the respective positions.
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                            Compare:

                            With:

                             

                          • (18) Here is a footnote from the dissent worth thinking about — the Supreme Court will be thinking about it soon enough. If you want to learn more about the issue, read our symposium! And listen to a free teleforum.
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                          • (19) Judge Randolph’s dissent also quoted an article I’m quite familiar with. If you teach regulatory classes, I recommend you read the back-and-forth between Randolph and Judge Pillard for the Court. Figuring out optimal incentives is a tricky business.
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                          • (20) Oh, one more thing about Judge Randolph’s dissent. He used one of his favorite lines again — and it is a darn good one.
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                            And with that, hopefully there is snow for you to enjoy too.*

                             

                             

                            * For what it is worth, my son hates the snow. I don’t know where I went wrong.

                             

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. 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. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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