D.C. Circuit Review – Reviewed: By Any Other Name

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

This will be a quick post; I am traveling.*

Today the Supreme Court granted certiorari in an important administrative law case — out of the Ninth Circuit:

Why am I writing a post about the Ninth Circuit? Isn’t that what Ninth Circuit Review — Reviewed is for? Because this isn’t really a Ninth Circuit case at all. This petition is about the en banc D.C. Circuit’s analysis in PHH Corp. v. CFPB. Don’t believe me? Here is a snippet from the Ninth Circuit’s opinion:

And then this:

If you want to get up to speed on the issue, here are some posts:

D.C. Circuit Review – Reviewed: The I-Don’t-Have-Time-To-Read-It-All Version of PHH Corp. v. CFPB

Fair Notice and the CFPB: The Other Constitutional Ruling in PHH v. CFPB, by Joseph Palmore & Bryan Leitch

D.C. Circuit Review – Reviewed: The Academy and PHH Corp.

The President’s Removal Power and the PHH Litigation, by Aditya Bamzai

D.C. Circuit Review – Reviewed: En Banc Oral Argument (Part I)

DC Circuit Holds Single Member Independent CFPB Unconstitutional, by Jack Beermann

D.C. Circuit Review – Reviewed: A Primer on Today’s CFPB Decision

D.C. Circuit Review – Reviewed: The Baron Montesquieu

And to be fair …

Ninth Circuit Review – Reviewed: CFPB Survives Another Separation of Powers Challenge, But Agency Isn’t Yet in the Clear



* The D.C. Circuit decided one case this week: INEOS USA LLC v. FERC (that’s a lot of capital letters). It’s a very “D.C. Circuit” case. Here is the first sentence: “PER CURIAM: INEOS USA LLC (‘INEOS’), a chemical producer, petitions for review of the decision of the Federal Energy Regulatory Commission to accept tariff filings without an investigation pursuant to Section 15(7) of the Interstate Commerce Act (‘ICA’), 49 U.S.C. app. § 15(7) (1988).” Judges Wilkins and Randolph (and maybe Rogers), acting per curiam, concluded that INEOS lacks standing because “INEOS’ claim of competitive injury from denial of access to the South Eddy Lateral is too speculative.” Judge Rogers concurred: “Any concern that a dismissal for lack of Article III standing appears harsh in view of INEOS’ efforts to gain access to the South Eddy Lateral pipeline for over thirty months is eliminated here because Section 15(7) of the Interstate Commerce Act (‘ICA’) precludes judicial review of the decision INEOS seeks to challenge.”


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.

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About Aaron Nielson

Professor Nielson is a 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.

One thought on “D.C. Circuit Review – Reviewed: By Any Other Name

  1. William M Yeatman

    Definitely a D.C. Cir. case! As aside, Adam White tells a great story about the Texas lawyer who came up with this argument. Evidently, none of the D.C. con law/admin law big wigs gave the Texan any thought.


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