D.C. Circuit Review – Reviewed: Can You Guess the Mystery Judge?

by Aaron Nielson — Saturday, Mar. 17, 2018@Aaron_L_Nielson

We love mysteries here at Notice & Comment — especially mysteries about the D.C. Circuit. And this week we have a humdinger of a mystery. As co-blogger Chris Walker highlighted a few days ago, Abbe Gluck and Richard Posner have just published Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals in the Harvard Law Review. I’ll let others discuss the merits of the article, including its limitations. Instead, I’d like to try to solve a mystery: Who is “D.C. Circuit Judge?”

As background, Gluck and Posner interviewed 42 judges, including “six” judges on the D.C. Circuit. According to the authors, D.C. Circuit judges — or at least the D.C. Circuit judges interviewed — tend to approach statutory interpretation from a unique vantage point: “The D.C. Circuit judges we interviewed … begin cases very differently from all of the others. For them, every statutory question begins with the threshold question of deference to an administrative agency.” Indeed: “They have drunk the Chevron Kool-Aid — the decisionmaking framework that requires judges to defer to reasonable agency interpretations of ambiguous statutes. They find comfort in that framework and consider the question of the agency’s role to be the first and most important question in statutory cases.” And this: “All but one of the D.C. Circuit judges we interviewed — who were of different generations and political parties — were admirers of Chevron deference, whereas most other judges from the other courts of appeals were decidedly anti-Chevron.”*

Gluck and Posner include an appendix of “representative interviews.” The last interview is of an unnamed “D.C. Circuit Judge.” So here’s the mystery: Who is it? (Needless to say, this game should be played in good fun.)

Here are some clues:

(1) When using a dictionary, our mystery judge likes to use more than one: “I will sometimes go to dictionary use, but then I’d use more than one dictionary. I don’t have a method of picking dictionaries and that’s why I choose several — to make sure they all have a common meaning and agree. I only look at a dictionary if I’m scratching my head about the word.

(2) It looks like our mystery judge thinks King v. Burwell was correctly decided, at least in terms of outcome: “Purpose, structure, organization are really important. The [Affordable Care Act] subsidies case; the purpose of Congress was evident, it couldn’t be missed. But that was different because it was a Chevron case too. Purpose matters a lot.” (In theory, this answer could be read to say that King was wrongly decided; it is somewhat ambiguous. But the “it was a Chevron case too” suggests deference.)

(3) Our mystery judge focuses on standards of review: “The places I start all the time are what’s my standard of review in this case, is the agency entitled to deference, and is there a precedent. That’s how I start. If I’ve got text, I’m certainly looking to see if there is plain meaning, then purpose, context, and structure. But standard of review and precedent are always in the case.”

(4) Our mystery judge knows a lot about legal scholarship: “In my view, it is an approach that lies somewhere in between the theses espoused by Richard Fallon (The Meaning of Legal ‘Meaning’), and Eskridge and Frickey (‘funnel of abstraction’). ‘Reasonable meaning’ might be a good description, but not in the narrow way that Hart and Sacks defined reasoned decisionmaking. In any event, in my view, there is no controlling categorical approach that is routinely applied in every case.

(5) Our mystery judge doesn’t mind reaching unpopular outcomes: “It is not the role of judges to ‘update’ statutes. There are many cases that present statutory questions that Congress did not foresee when drafting.”

Who is it?

My guess is former Chief Judge Harry Edwards. Judge Edwards, a formidable jurist by any measure, has written an entire book about standards of review. He also dissented when the D.C. Circuit addressed the issue that the Supreme Court decided in King, stressing purpose and deference. This is an important clue because I can’t imagine certain members of the D.C. Circuit — for instance, the majority on the panel — agreeing with the Supreme Court’s King decision. Likewise, Judge Edwards was a law professor and knows the legal academy well. He also recently rejected an agency’s attempt to expand a statute’s reach. And — I admit, this is the weakest evidence — he sometimes cites more than one dictionary.

If you have other guesses, put them in the comments!

***

The D.C. Circuit decided four cases this week.

In ACA International v. FCC, the big opinion of the week, Judge Srinivasan (joined by Judges Pillard and Edwards) granted in part and denied in part petitions to review the FCC’s “2015 order in which the Commission sought to clarify various aspects of the TCPA’s [Telephone Consumer Protection Act] general bar against using automated dialing devices to make uninvited calls.” Among other points, the Court concluded that the FCC’s determination of “which sorts of calling equipment qualify as an [autodialer]” was too broad as it “would appear to subject ordinary calls from any conventional smartphone to the Act’s coverage, an unreasonably expansive interpretation of the statute.” The Court upheld the FCC’s determination that “a party may revoke her consent through any reasonable means clearly expressing a desire to receive no further messages from the caller.” The Court also upheld the “scope of the agency’s exemption for time-sensitive healthcare calls,” among other points. You know, here is another mystery: Why did the panel take so long to decide this one? This case was argued on October 2016; especially in the D.C. Circuit, 17 months is a long wait. I welcome speculation on this in the comments too.

[Note: It looks like Kirkland & Ellis filed an amicus brief; in the interest of full disclosure, I’m of counsel there.]

In Sierra Club v. EPA, Judge Pillard (joined by Judges Rogers and Srinivasan) granted in part petitions challenging the EPA’s rule on setting carbon monoxide levels for industrial boilers. The Court concluded that the EPA’s assertion “that … emissions are extremely low … is not a reasoned basis for concluding that [they] cannot be reduced still further.” The Court also found that the evidence relied on by the EPA to set the threshold was contradictory and left the Court “unable to discern any reasoned basis that … emissions cannot be further reduced.” The Court, however, upheld the EPA’s “work practice standards” for the startup and shutdown processes for the industrial boilers and found that these standards were appropriate as “they reasonably approximate what the best-performing boilers can achieve.” I suspect more than a few environmental lawyers will give this opinion a close read.

In NorthWestern Corporation v. FERC, Judge Kavanaugh (joined by Judges Wilkins and Randolph) denied NorthWestern’s petition to vacate FERC’s determination that “NorthWestern’s proposed rate was not just and reasonable” after it had “built a new generating station dedicated to providing regulation service.” NorthWestern also unsuccessfully challenged FERC’s decision to “order[] NorthWestern to refund its customers the difference between the proposed rate and the modified rate.” The Court found that “FERC’s decision . . . was reasonable and reasonably explained” in rejecting NorthWestern’s proposed rate and that “it was NorthWestern’s burden to show that its proposed rate was just and reasonable.” The Court also found that “FERC reasonably determined that NorthWestern over-collected from its . . . customers” in which “FERC [could] ordinarily order[] refunds.” (This is a fun opinion to read; Judge Kavanaugh uses short sentences especially well. For instance, two sentences consistent of two words: “We disagree.”)

Finally, in Ladeairous v. Sessions, Judge Williams (joined by Judges Srinivasan and Wilkins) vacated and remanded the district court’s denial of Ladeairous’ in forma pauperis request. The Court determined that Ladeairous had not accumulated “three strikes” because, in effect, counting strikes requires looking beyond labels. This isn’t an “admin law” opinion but it may prove significant; it builds on a recent opinion.

And that’s the week. (By the way, if you think today’s mystery was fun, here’s another: Which Justices voted to grant certiorari in Gundy v. United States?)

 

* Or maybe two of the six D.C. Circuit judges should be counted as skeptical of Chevron: “Although one D.C. Circuit judge told us that ‘generally, I do think Chevron is a good rule,’ and another that ‘because the issues of statutory interpretation do involve policy consequences, and because the agency is supposed to be knowledgeable about that, and because the agency is susceptible to political influence and policy, it makes sense,’ two expressed some new reservations about Chevron.”

 

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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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