D.C. Circuit Review – Reviewed: A Dog’s Breakfast

by Aaron Nielson — Friday, Oct. 12, 2018@Aaron_L_Nielson

About ten years ago, I came across a phrase I had never heard before: dog’s breakfast. It was in a dissent penned by Chief Justice Roberts. Here is the passage:

When the state courts considered these cases, our precedents did not provide them with “clearly established” law, but instead a dog’s breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path. Whatever the law may be today, the Court’s ruling that `twas always so -— and that state courts were “objectively unreasonable” not to know it -— is utterly revisionist.

I don’t recall much about what that case was about (re-reading today, it looks like an AEDPA case), but I do sometimes think about the phrase. And today’s post is going to be a dog’s breakfast. There are a number of things to flag but no obvious theme.

First, the D.C. Circuit now has a vacancy that could be filled before the end of the year. That’s interesting.

 

Second, retired Judge Janice Rogers Brown has been mentioned as a possible candidate for a new job. I would love to see her back in action in some capacity, but her returning to Washington strikes me as … unlikely.

 

Third, the Senate confirmed Jeff Clark yesterday. I suspect he will argue a few cases in the D.C. Circuit.

 

Fourth, the Senate also confirmed Ryan Nelson yesterday. Judge Nelson is a former clerk of Judge Henderson (a D.C. Circuit connection!) and serves on the Council of the ABA Section of Administrative Law and Regulatory Practice (which co-sponsors this blog).

 

Fifth, the D.C. Circuit decided two cases this week — err, well, one and a half. One is a reissued opinion. In Katopothis v. Windsor-Mount Joy Mutual Insurance Co., the panel (Judge Griffith, joined by Judges Sentelle and Katsas*) opened the revised opinion this way:

The changes relate to appellate jurisdiction; in particular, a challenge to personal jurisdiction was lodged after the case below was transferred (there is an interesting discussion of “informally request[ing] that the transferee court ‘return the file'”). Likewise, the panel clarified how it had subject matter jurisdiction to review a grant of summary judgment in light of that transfer. Yup: “Even the D.C. Circuit makes mistakes.” I appreciate the Court’s candor about it; well done.

 

Sixth, on the subject of mistakes, I stumbled across an interesting passage in a Supreme Court oral argument transcript.

Interesting. I’m sure not everyone will agree that the Supreme Court’s “categorical approach” cases are a mistake — but surely everyone agrees that it has created a lot of confusion.

 

Seventh, the D.C. Circuit’s other case is also about a mistake of sorts. Palacios v. Spencer — per Judge Randolph, joined by Judges Griffith and Edwards — concerns the relationship between the D.C. Circuit and the Federal Circuit. Here is the relevant analysis (in part):

 

Eighth, as a point of personal privilege, my latest articleOptimal Ossification — has now been published in the George Washington Law Review. Many thanks for all the hard work that the student editors put into it.

 

Ninth, the ABA Admin Law Section’s annual conference is coming up in early November. I’ll be moderating a panel of judges — including (for a D.C. Circuit connection) Judge Sentelle — about how to best litigate administrative law cases. Some of my co-bloggers will able be there, including (at least) Bernard Bell, Emily Bremer, Bridget Dooling, Jenn Mascott, Chris Walker, and Adam White, plus occasional guest bloggers Aditya Bamzai, Susan Dudley, Kristin Hickman, Linda Jellum, Jeff Lubbers, Jennifer Nou, Leigh Osofsky, Nick Parrillo, and Richard Pierce (and I’m sure I’ve missed some folks; apologies). It should be fun, so come!

 

And tenth, this may be the most wonderfully nerdy thing ever posted on this blog — and that’s saying something! But last week, my friend Anne Joseph O’Connell tweeted (ugh) the following:

 

Usually, delicious cake is not part of a dog’s breakfast. But it is this week.

 

* Judge Kavanaugh was initially on the panel. Judge Katsas was selected for rehearing purposes.

 

UPDATE: Howard Bashman (of course) also beat me to “Dog’s Breakfast.” Here is his commentary from earlier this year:

 

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.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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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