D.C. Circuit Review – Reviewed: 417 Pages

by Aaron Nielson — Friday, July 28, 2017@Aaron_L_Nielson

417 pages. Four hundred seventeen pages. Cuatrocientos diecisiete páginas. Quadringentos annos pages. 417ページ.*

The D.C. Circuit’s opinions this week come in at 417 pages. And these pages are not easy pages; we have high-level constitutional law, dense environmental law, a major circuit split about Medicare, a very important case about terrorism, and a sighting of rare administrative procedure. So what does all of this mean? Well, three things. First, it is the summer. Second, there goes my day. And third, you’re welcome.

I’ve decided to organize this week’s post by opinion length — shortest to longest. Let’s go.

First, the shortest opinion of the week, at a lean 18 pages, is (drum roll, please) … Allina Health Services v. Price, authored by Judge Kavanaugh (of course). Kavanaugh (joined by Judges Henderson and Millett), concluded that the Department of Health and Human Services violated the Medicare Act when it changed the reimbursement adjustment formula without opportunity for notice and comment. The most important doctrinal point: “The problem with that argument is that the Medicare Act does not incorporate the APA’s interpretive-rule exception to the notice-and-comment requirement.” This is a big deal: “We recognize that we are breaking with several other courts of appeals by holding that the Medicare Act does not incorporate all of the APA’s exceptions to the notice-and-comment requirement.” Perhaps the Supreme Court will consider the issue; this case, however, is an iffy vehicle because the panel also reached the same result for another reason.

Second, we have Flyers Rights Education Fund v. FAA. This 23-page case is going to get a lot of media attention. Here is how Judge Millett (joined in full by Judge Pillard and in part by Judge Rogers) opens her opinion: “This is the Case of the Incredible Shrinking Airline Seat. As many have no doubt noticed, aircraft seats and the spacing between them have been getting smaller and smaller, while American passengers have been growing in size. Paul Hudson and the Flyers Rights group became concerned that this sharp contraction in passenger seating space was endangering the safety, health, and comfort of airline passengers. So they petitioned the Federal Aviation Administration to promulgate rules governing size limitations for aircraft seats to ensure, among other things, that passengers can safely and quickly evacuate a plane in an emergency. The Administration denied the petition, asserting that seat spacing did not affect the safety or speed of passenger evacuations. To support that conclusion, the Administration pointed to (at best) off-point studies and undisclosed tests using unknown parameters. That type of vaporous record will not do—the Administrative Procedure Act requires reasoned decisionmaking grounded in actual evidence. Accordingly, we grant the petition for review in part and remand to the Administration.” Judge Rogers concurred in the judgment because she would not reach whether “safety” includes “health” because it was first raised in the reply brief. This case is important for a bunch of reasons — including the possibility (depending on what FAA does next) that airline flights may become more expensive! But for me, the most interesting point is one of procedure. This is one of the rare cases in which an agency’s failure to engage in rulemaking was deemed unlawful. That almost never happens. Perhaps this case will end up in a casebook or two.

Third on our list is Shea v. Cellco Partnership, coming in at 24 pages. Judge Srinivasan (joined by Judges Millett and Randolph) affirmed the district court’s ruling on all grounds regarding qui tam. Shea brought two qui tam lawsuits against Verizon alleging a violation of the False Claims Act because, he says, Verizon overbilled the government. The first lawsuit was settled and Shea received $20 million for his troubles. Shae filed a second suit, however, before the settlement was reached, which alleged more overbilling regarding different contracts. The district court ruled that the second suit violated the “first-to-file” bar (because it related to the first suit) and dismissed the suit. Shea appealed, claiming he should be allowed to amend. The court ruled that Shea would need to file a new suit instead of merely amending. We have another circuit split here. “Shea seeks to resist the terms of the first-to-file bar by arguing that dismissing his action with leave to refile it—as opposed to allowing him to amend his existing complaint— would elevate form over substance. The First Circuit agrees, reasoning that dismissal in the circumstances of this case would be a ‘pointless formality.’ See United States ex rel. Gadbois v. Pharmerica Corp., 809 F.3d 1, 6 (1st Cir. 2015). … Respectfully, we see things differently.”

Fourth, United States v. Eshetu (28 pages, if you were wondering). Judge Henderson (joined in full by Judge Kavanaugh and in part by Judge Millett) addressed a criminal conspiracy. Alas, since this is the Yale Journal on Regulation, and because there are a lot of cases this week, that’s really I’m going to say about a very fact-bound criminal appeal. I will observe, however, that the discussion of vagueness and the categorical approach is worth reading, even if criminal law is not your field. Judge Millett wrote separately on that point. (Question: Is it time for Congress to scrap the “categorical approach,” at least in the context of residual clauses?)

Fifth, at 34 pages, is Hurd v. Washington. This isn’t really a pure “Regulation” case either, but it is interesting. And, indeed, along with Chris Walker, I’ve argued that administrative law might have something to say about suits against government officials under Section 1983. This case, however, is about a Section 1983 suit against the District of Columbia, which raises different issues. In any event, here is the story, as explained by Judge Pillard (joined by Judge Edwards). Michael Hurd was released from federal prison early “under circumstances that he reasonably believed reflected a deliberate sentence reduction.” Later, however, “Hurd pleaded guilty to marijuana possession in D.C. Superior Court and was sentenced to three consecutive weekends in the D.C. jail. After his second weekend duly serving this sentence, the D.C. Department of Corrections—without explanation or opportunity to be heard—disregarded the Superior Court order specifying that Hurd was ‘to be released on Sunday, October 2, 2011, at 7 p.m.’ and instead kept him imprisoned for an additional 27 months, apparently the remainder of his original sentence.” Hurd unsuccessfully sought habeas corpus from the D.C. Superior Court; he then appealed to the D.C. Court of Appeals, which did not act on his appeal in time to prevent his petition for habeas relief from becoming moot. Hurd then brought a Section 1983 claim against the District of Columbia. Is that okay, or is it precluded by the denial of his habeas petition? “We conclude that the Superior Court’s 2012 decision lacks the preclusive effect the district court perceived. Because Hurd was unable to obtain a decision on his habeas appeal once he was no longer in custody, and because section 1983 claims cannot be joined in a habeas proceeding, the Superior Court’s unreviewed bench ruling was not the result of a full and fair opportunity to litigate.” On the merits, Judge Pillard concluded that Hurd stated a claim under procedural and substantive due process theories. Judge Randolph dissented: “The majority’s contrary view – that in order to have preclusive effect, the available relief in the first proceeding must meet or exceed the available relief in the second – finds no support in D.C. law.” (Needless to say, there is a lot going on in this case. But hopefully you get the gist.)

Sixth (and seventh too), we have Wrenn v. District of Columbia, at 38 pages. (There also is Grace v. District of Columbia — which gets its own listing on the Court’s webpage — but says the same thing as Wren; it appears that the two cases may not have been formally consolidated, even though one opinion covers both.) This is almost certainly the most important case of the week — or at least the one that will attract the most attention. Judge Griffith (joined by Judge Williams) addressed the Second Amendment. He explained that “constitutional challenges to gun laws create peculiar puzzles for courts,” and that there has been little guidance from the Supreme Court on the issue. Indeed, the Supreme Court’s “first in-depth examination of the Second Amendment’ is younger than the first iPhone.” In this case, the plaintiffs challenged the District’s “good reason laws” which dictate that only citizens with “good reason to fear injury . . . or those with any other proper reason for carrying a pistol” may carry a weapon. The majority concluded that the “[Second] Amendment’s core generally covers carrying in public for self-defense” and that there was no need to “apply traditional tiers of scrutiny because no such analysis could ever sanction obliterations of an enumerated constitutional right.” As with some of the other cases this week, there is a circuit split here too: “Other circuits reviewing good-reason regulations have disagreed, holding that burdens on carrying trigger only intermediate scrutiny because the right to carry merits less protection than the right to possess …. Each circuit court justifying this modest review of good-reason laws has relied on an inference from the tolerance in American law for certain other carrying regulations. But each of these courts has also dispensed with the historical digging that would have exposed that inference as faulty.” In her dissent, Judge Henderson (who often dissents in these cases) argued that the “core” of the Second Amendment “does not extend beyond the home.” Then applying “at most intermediate scrutiny,” Judge Henderson reasoned that the good reason law passes muster. Question: Is this the most significant opinion Judge Griffith has ever authored? Maybe! There are a few others in the running, however.

(Note: It looks like Kirkland & Ellis filed an amicus brief. I’m of counsel but did not work on this brief.)

Eighth, at 85 pages, is Americans for Clean Energy v. EPA. This one is also by Judge Kavanaugh (joined by Judges Brown and Millett) — so not all of his opinions are short! That said, from the list of counsel alone, one can tell that this is a big case. Here is Judge Kavanaugh’s summary:

The Clean Air Act’s Renewable Fuel Program requires an increasing amount of renewable fuel to be introduced into the Nation’s transportation fuel supply each year. By mandating the replacement – at least to a certain degree – of fossil fuel with renewable fuel, Congress intended the Renewable Fuel Program to move the United States toward greater energy independence and to reduce greenhouse gas emissions.

EPA is the federal agency primarily responsible for implementing the Renewable Fuel Program’s requirements. Congress has directed EPA to annually publish renewable fuel requirements that apply to certain participants in the transportation fuel market. In 2015, EPA promulgated a Final Rule setting several renewable fuel requirements for the years 2014 through 2017. In this set of consolidated petitions, various organizations, companies, and interest groups challenge that EPA Final Rule on a number of grounds. Some argue that EPA set the renewable fuel requirements too high. Others argue that EPA set the renewable fuel requirements too low

We reject all of those challenges, except for one: We agree with Americans for Clean Energy and its aligned petitioners (collectively referred to as “Americans for Clean Energy”) that EPA erred in how it interpreted the “inadequate domestic supply” waiver provision. We hold that the “inadequate domestic supply” provision authorizes EPA to consider supply-side factors affecting the volume of renewable fuel that is available to refiners, blenders, and importers to meet the statutory volume requirements. It does not allow EPA to consider the volume of renewable fuel that is available to ultimate consumers or the demand-side constraints that affect the consumption of renewable fuel by consumers. We therefore grant Americans for Clean Energy’s petition for review of the 2015 Final Rule, vacate EPA’s decision to reduce the total renewable fuel volume requirements for 2016 through use of its “inadequate domestic supply” waiver authority, and remand the rule to EPA for further consideration in light of our decision. We otherwise deny the petitions for review.

This is a hard opinion to explain (though, to Judge Kavanaugh’s credit, it reads really well considering the degree of difficulty). This is probably the key paragraph: “In other words, the ‘inadequate domestic supply’ waiver provision is just that: a waiver provision. It authorizes EPA to ease the Renewable Fuel Program’s requirements when complying with those requirements would be infeasible. With that understanding of how the ‘inadequate domestic supply’ provision operates in the statutory scheme, EPA’s reading of the provision makes little sense: Whether consumers have an adequate supply of renewable fuel to fill their cars is not relevant to whether refiners, blenders, and importers have an adequate supply of renewable fuel to meet the statutory volume requirements. For purposes of measuring available ‘supply,’ the ‘persons’ at issue are refiners, blenders, and importers.” This sentence too merits quoting: “The central problem with EPA’s ‘supply equals demand’ argument (in addition to the text of the statute, of course) is that it runs contrary to how the Renewable Fuel Program is supposed to work.” This sentence also seems noteworthy: “To be sure, EPA and obligated parties have raised serious concerns that the Renewable Fuel Program is not actually functioning as intended and that, as a result, the statute’s requirements will only become more and more impractical to meet. But the fact that EPA thinks a statute would work better if tweaked does not give EPA the right to amend the statute.” And this: “If the regime is indeed flawed, it is up to Congress and the President to ‘reenter the field’ and fix it. … see U.S. CONST. art. I, § 7, cl. 2.” (There is a lot more in this opinion — a lot more. But this is good enough for a blog post.)

And, at last, the longest opinion of the week: Owens v. Republic of Sudan. This one is 129 pages. (By way of comparison, Animal Farm is only 112 pages.) Judge Ginsburg (joined by Judges Henderson and Rogers) helpfully included a two-page table of contents.

Owens v. Republic of Sudan TOC

Here is how this opinion begins:

On August 7, 1998 truck bombs exploded outside the United States embassies in Nairobi, Kenya and in Dar es Salaam, Tanzania. The explosions killed more than 200 people and injured more than a thousand. Many of the victims of the attacks were U.S. citizens, government employees, or contractors. As would later be discovered, the bombings were the work of al Qaeda, and only the first of several successful attacks against U.S. interests culminating in the September 11, 2001 attack on the United States itself. From 1991 to 1996, al Qaeda and its leader, Usama bin Laden, maintained a base of operations in Sudan. During this time, al Qaeda developed the terrorist cells in Kenya and Tanzania that would later launch the embassy attacks. This appeal considers several default judgments holding Sudan liable for the personal injuries suffered by victims of the al Qaeda embassy bombings and their family members.

And this is how it ends:

To conclude, we (1) affirm the district court’s findings of jurisdiction with respect to all plaintiffs and all claims; (2) affirm the district court’s denial of vacatur; (3) vacate all awards of punitive damages; and (4) certify a question of state law – whether a plaintiff must be present at the scene of a terrorist bombing in order to recover for IIED – to the District of Columbia Court of Appeals.

In between, there are more than 120 pages that include thoughts such as this: “This does not mean Sudan’s interpretation of international law as it pertains to summary executions (as opposed to extrajudicial killings) is wrong or that direct state involvement is not needed for certain violations of international law. Rather, the point is that the role of the state in an extrajudicial killing appears less clear under international law than Sudan would have us believe; indeed it appears less clear than the definition of an ‘extrajudicial killing’ in the TVPA itself. Accordingly, we doubt the Congress intended categorically to preclude state liability for killings by nonstate actors by adopting a definition of ‘extrajudicial killing’ similar to that of a ‘summary execution’ in the Geneva Conventions.”

And this: “Sudan’s reading of this phrase leads to an illogical conclusion. A statutory definition made expressly ‘[f]or the purposes of this Act’ informs our understanding of the entire statute. In other words, the definitions in TVPA § 3 govern the use of those defined terms elsewhere in the Act. Under Sudan’s interpretation, however, the reverse would occur: in order to understand the meaning of a defined term, we would have to look to the remainder of the statute, and not to the definition itself. What then, we wonder, would the definition contribute to the statute? Would it be wholly redundant, a conclusion that conflicts with our usual interpretive presumptions? Or, if not redundant, how would a court then apply the definition to terms used in the remainder of the statute if the remainder of the statute, in turn, gave meaning to the definition? Given these paradoxes, the phrase ‘[f]or the purposes of this Act’ cannot mean what Sudan contends.”

And this: “Although Sudan expelled bin Laden in 1996 under international pressure, Kohlmann, Vidino, and one other expert testified that some al Qaeda operatives remained in the country thereafter.”

And this: “Sudan’s own actions also gave it knowledge of al Qaeda’s capabilities and aims. For example, Sudanese intelligence must have known that al Qaeda operated training camps where explosives were used because it shielded those camps from interference by the local police. Sudan also knew al Qaeda was transporting large, undeclared sums of money to Kenya because Sudanese agents shepherded operatives with this money past airport inspections. Likewise, Sudan knew something of al Qaeda’s arsenal because its own planes transported al Qaeda’s weapons from Afghanistan to Sudan.”

And finally this: “There being no clear textual command, the plaintiffs urge that the purpose of § 1083(c) supplies the necessary clear statement of congressional intent. An argument based solely upon the purpose of a statute can hardly supply a ‘clear statement’ of any sort. Because an expansion of punitive damages would operate retroactively by ‘increas[ing] [Sudan’s] liability for past conduct,’ the presumption in Landgraf applies and bars an award of punitive damages for the embassy bombings, which occurred before the enactment of the 2008 NDAA.”

I apologize; this post is a slog. That’s what 417 pages will do to you.

* That is supposed to be Japanese. If it is wrong, blame Google Translate. If it is right, well, then thank Google Translate!

 

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.

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.

Cite As: Author Name, Title, Yale J. on Reg.: Notice & Comment (date), URL.

Leave a Reply

Your email address will not be published. Required fields are marked *