D.C. Circuit Review – Reviewed: *

by Aaron Nielson — Sunday, June 5, 2016@Aaron_L_Nielson

Perhaps another circuit court has adopted this local rule too (though I’ve not yet come across it), but for tables of authorities in the D.C. Circuit, “an asterisk must be placed next to those authorities on which the brief principally relies, together with a notation at the bottom of the first page of the table stating: ‘Authorities upon which we chiefly rely are marked with asterisks.’” No doubt, the D.C. Circuit does not need this local rule—after all, just by reading the brief, you can tell which cases are the most important. Yet even though asterisks are not essential, the D.C. Circuit has concluded that they can be helpful.

Those asterisks made me think of a game. I’ve read all eight of the D.C. Circuit’s opinions this week to identify the most important precedents cited in each of them. So here is your challenge: Based on just those asterisked authorities, can you tell what each opinion is about? (Note, I did not say that this would be a fun game. But if you care about Admin Law or Fed Courts, just seeing some of these citations should make you want to read the D.C. Circuit’s opinions.)

Here we go. It’s time for …

The Asterisk Game: How Well Do You Know Precedent?

Rhea Lana, Inc. v. DOL: U.S. Army Corps of Eng’rs v. Hawkes Co. (May 2016); Sackett v. EPA, 132 S. Ct. 1367 (2012); Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012).

Friends of Animals v. Jewell: Bank Markazi v. Peterson (April 2016); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995); United States v. Klein, 80 U.S. (13 Wall.) 128 (1871).

Spectrum Pharmaceuticals, Inc v. Burwell: Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); Bristol-Myers Squibb Co. v. Shalala, 91 F.3d 1493, 1496 (D.C. Cir. 1996).

United States v. Kpodi: Gall v. United States, 552 U.S. 38 (2007); United States v. Watts, 519 U.S. 148 (1997).

Duberry v. DC: Blessing v. Freestone, 520 U.S. 329 (1997); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989); Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900).

New York v. NRC: New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012); Minnesota v. NRC, 602 F.2d 412 (D.C. Cir. 1979); In re Aiken Cnty., 645 F.3d 428 (D.C. Cir. 2011).

Chambers v. Burwell: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Cones v. Shalala, 199 F.3d 512 (D.C. Cir. 2000).

Diag Human S.E. v. Czech Republic – Ministry of Health: Belize Soc. Dev. Ltd. v. Belize, 794 F.3d 99 (D.C. Cir. 2015); Anders Åslund, BUILDING CAPITALISM: THE TRANSFORMATION OF THE FORMER SOVIET BLOC (2002) [note, in the real world, I’ve never seen a book cited as a principal authority, but still, this is an unusual opinion].

So how did you do?* Perhaps we’ll have to play this game again the next time the D.C. Circuit has eight complex opinions in a single week!

 

* Here are the answers:

Rhea Lana: This is an important case about what constitutes final agency action and when courts should deny Auer deference. Judge Pillard, joined by Judge Edwards (Chief Judge Garland sat this one out), determined that a warning letter from the Department of Labor was final agency action and allowed a pre-enforcement challenge to the legality of the warning. Along the way, the Court appliedChristopher to reject Auer deference: “Such deference is unwarranted when it appears that the interpretation is nothing more than a convenient litigating position, or a post hoc rationalization advanced by an agency seeking to defend past agency action against attack.”

Friends of Animals: This is a fascinating Endangered Species Act case that involves Congress’s power to reinstate a regulation that has been vacated in an Article III judgment. Judge Edwards, joined by Judges Kavanaugh and Sentelle (though Sentelle authored a concurring opinion questing standing) addressed a statue stating that: “Before the end of the 60-day period beginning on the date of enactment of this Act, the Secretary of the Interior shall reissue the final rule published on September 2, 2005 (70 Fed. Reg. 52310 et seq.) without regard to any other provision of statute or regulation that applies to issuance of such rule.” Is it constitutional for Congress to undo a court’s judgment in this way? The answer is yes: “Congress undoubtedly may change the precedential value of a decision by passing prospective legislation, which is what Congress chose to do when it enacted Section 127.”

Spectrum Pharmaceuticals: This is an important pharmaceutical case involving so-called “Orphan Drugs.” Judge Griffith, joined by Judges Kavanaugh and Wilkins, confronted a difficult question about marketing exclusivity and off-label uses and upheld the agency’s view as both reasonable underChevron Step 2 and consistent with past positions. Unfortunately, there is not enough time to give this opinion all the attention that it deserves. Suffice it to say, a lot of very expensive lawyers will read this opinion carefully. If you care about healthcare law, you should too.

Kpodi: I don’t generally blog about sentencing issues. This is an interesting one, however. Judge Henderson, joined by Judges Srinivasan and Millett, concluded that the district court erred. Here is how the Court introduced its opinion: “After his May 9, 2013 arrest, Hiachor Kpodi was convicted of possessing with intent to distribute twenty-eight grams or more of cocaine base and possession of a firearm by a felon. During sentencing, the district court considered, as an aggravating factor, evidence that Kpodi was involved in an unrelated gunfight even though it had prohibited the Government from introducing the same evidence during Kpodi’s trial [because it was too prejudicial]. … For the reasons that follow, we vacate and remand for resentencing in light of the district court’s erroneous reliance on the evidence of the gunfight.” Although sentencing courts can rely on acquitted conduct or facts not presented to the jury, here there was not enough evidence regarding Kpodi’s participation in the shootout to justify reliance on it.

Duberry: Wow—this is a complex case involving concealed weapons in the context of a Section 1983 suit. Long story short, Judge Rogers (joined by Judge Kavanaugh) found federal jurisdiction and the existence of an enforceable federal right; Judge Henderson dissented. As with Spectrum Pharmaceuticals¸ I am not able to give this case all the attention it deserves. Rising 2Ls, however, pay attention: this case may be the springboard for an interesting student note. (Note the citation to “Printz v. United States 521 U.S. 898, 925–26 (1997).”)

New York: This is a NEPA case involving nuclear power. Judge Sentelle (joined by Judges Kavanaugh and Edwards) opened the opinion this way: “Several states, a Native American community, and numerous environmental organizations have filed petitions for review of a rule and generic environmental impact statement promulgated by the Nuclear Regulatory Commission, concerning the continued, and possibly indefinite, storage of spent fuel from nuclear power plants in the United States. The petitioners argue that the NRC fails to comply with its obligations under the National Environmental Policy Act. Specifically, the petitioners contend that the NRC did not consider alternatives to and mitigation measures for the continued storage of spent nuclear fuel, miscalculated the impacts of continued storage, and relied on unreasonable assumptions in its environmental impact statement. Because we hold that the NRC did not engage in arbitrary or capricious decision-making, we deny the petitions for review.” If you want a good summary of the law of nuclear waste, this opinion is worth a read.

Chambers: This is a discrimination case authored by Judge Griffith and joined by Judges Srinivasan and Silberman. Although ruling against the plaintiff, the panel offered an important clarification: “The government agrees that the denial of a promotion is an adverse employment action. But the government argues a denial of promotion is only cognizable as an adverse employment action if a vacancy for the desired position already exists. The district court agreed and on that basis ruled against Chambers. But there is no such categorical rule in our case law.”

Diag Human: This case involves the transition away from communism in Eastern Europe healthcare law. Judge Brown—joined by Judge Tatel—disagreed with Judge Sentelle about whether there is jurisdiction to enforce a foreign arbitral award involving distribution of blood plasma; Chief Judge Garland had initially been part of the panel, but he was replaced by Judge Tatel after Judges Brown and Sentelle splintered. Judge Brown’s opinion includes this quote: “Soviet rule, as the playwright and dissident Václav Havel said, left ‘a legacy of countless dead, an infinite spectrum of human suffering, profound economic decline, and above all enormous human humiliation.’” I will leave the details of this arbitration, however, and whether it was “commercial” in character, to those who follow this field.

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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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