D.C. Circuit Review – Reviewed: Catnip for #AppellateTwitter

by Aaron Nielson — Friday, June 7, 2019@Aaron_L_Nielson

It’s remarkable how much nonsense (or worse) can be crammed into 280 characters. #NationalDoughnutDay, indeed. And I even like donuts! Bah humbug. To all of it, I say #GetOffMyLawn.

That said, I enjoy learning about new things. And a good way to do that is Twitter. Granted, the nonsense-to-sense ratio could be better. But there are smart folks out there who are monitoring a lot of interesting developments. For instance, I’ve become a fan of #AppellateTwitter. Over the last few years, I’ve learned a lot from far-flung specialists who use that particular hashtag.*

Today I’m going to return the favor. D.C. Circuit cases are full of catnip for #AppellateTwitter. Don’t believe me? This week’s decisions touch on jurisdiction stripping, advisory opinions, permissible post hoc justifications, double forfeiture, the fuzzy distinction between claims and arguments, and intervention standards. Sure, these are niche topics that likely will not be trending anytime soon. But you know what? Twitter can connect you with folks who care about niche topics. And that’s great.

Let’s start with #JurisdictionStripping. In DCH Regional Medical Center v. Azar, Judge Katsas (joined by Judges Millett and Silberman) addressed the scope of 42 U.S.C. § 1395ww(r)(3):

Query whether this is an example of jurisdiction “stripping” or, instead, jurisdiction “non-extending.” In either event, it’s interesting. The question in DCH Regional Medical Center is whether that limit on judicial review of estimates also “bars challenges to the methodology used to make the estimates.” The Court concluded that it does. Along the way, the Court included this analysis:

 

  • “In this statutory scheme, a challenge to the methodology for estimating uncompensated care is unavoidably a challenge to the estimates themselves. The statute draws no distinction between the two. Instead, it simply provides for payments under a formula consisting of three factors estimated by the Secretary. There is also no way to review the Secretary’s method of estimation without reviewing the estimate itself. DCH’s complaint confirms this point. … Moreover, DCH’s proposed distinction between methodology and estimates would eviscerate the statutory bar, for almost any challenge to an estimate could be recast as a challenge to its underlying methodology.”
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  • “DCH further argues that even if the statutory bar on judicial review applies, the district court still should have set aside the calculation of its DSH additional payment as ultra vires. According to DCH, the district court could have done so because the Secretary, in making the calculation, failed to choose appropriate data. DCH is mistaken. The doctrine invoked by DCH traces to Leedom v. Kyne, 358 U.S. 184 (1958). That case involved section 9(b)(1) of the National Labor Relations Act, which provides that the National Labor Relations Board ‘shall not’ certify a bargaining unit including professionals and other employees ‘unless a majority of such professional employees vote for inclusion in such unit.’ The Board had done just that, and the Supreme Court described its action as one ‘made in excess of its delegated powers and contrary to a specific prohibition in the Act.’ The Court further held that the district court had jurisdiction to set aside this unlawful agency action [even though review ordinarily must be in the court of appeals]. … In Board of Governors of the Federal Reserve System v. MCorp Financial, Inc., 502 U.S. 32 (1991), the Supreme Court cautioned against overreading Kyne’s jurisdictional holding.”
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  • “[T]here is not much room to contend that courts may disregard statutory bars on judicial review just because the underlying merits seem obvious. This Court has stated that such an argument ‘is essentially a Hail Mary pass — and in court as in football, the attempt rarely succeeds.'”
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    Next, #AdvisoryOpinions. Birckhead v. FERC — per Chief Judge Garland, joined by Judges Tatel and Wilkins — is a noteworthy environmental law case about the National Environmental Policy Act and the scope of the Court’s decision in Sierra Club v. FERC. But I want to focus on a paragraph at the end:

    If the Court lacks jurisdiction to consider an issue, should it express such misgivings? Yet, in the panel’s defense, decisions often contain dicta. So where to draw the line? That question can spark a lively discussion in a Fed Court class. But what say ye, #AppellateTwitter?

    What about #PostHoc? There is an interesting discussion about it in Rhea Lana, Inc. v. Department of Labor (per Judge Srinivasan, joined by Judges Katsas and Ginsburg). It is black-letter law that an agency decision cannot be defended with a post hoc justification. And by “black-letter law,” I mean “black-letter law”-ish. There is no need to remand, for instance, if there is only one lawful path the agency can take. And sometimes the agency may not have prepared a contemporaneous explanation at all. But there are other exceptions too — exceptions that if taken too far will swallow the rule. Here, Judge Srinivsan explains that the Court is more willing to allow “post hoc declarations … when the declarations have come from the relevant agency decisionmaker,” especially where the post hoc statement “largely echoes the rationale contained in the contemporaneous record.” (If you practice labor law, you should definitely read this opinion … as well as the dicta in Judge Katsas’s concurrence.)

    #DoubleForfeiture is next. Marshall’s Locksmith Service v. Google (per Chief Judge Garland, joined by Judges Millett and Edwards) is a fascinating opinion about how “scam locksmiths” are ruining the internet and what role the Communications Decency Act plays when a search engine uses information provided by said scammers to the detriment of “legitimate locksmiths.” Here is a sample:

    But there is something else in this opinion that #AppellateTwitter will care about: two species of forfeiture. Here, the “legitimate locksmiths” raised a theory in their amended complaint that was not briefed on appeal, resulting in forfeiture. And on appeal, they briefed a theory that was not in their amended complaint, also resulting in forfeiture.

    Now #Claims-v-Arguments, and with it, Davis v. District of Columbia. This is a lengthy opinion penned by Judge Pillard and joined by Judge Millett about employment discrimination in the context of a reduction in force. I’ll leave the merits to my friends in #EmploymentLaw. Instead, I’ll focus on the distinction between arguments and claims. Here is a snippet from the majority opinion:

    And here is a response from Judge Katsas in dissent:

    There are a lot of fuzzy lines here. I’d read a student note about how the various circuits apply Lebron. (Warning, students: I may be the only person in that category.)

    Finally, #NLRBInvervention. In DirectSat USA LLC v. NLRB, Judge Srinivasan (joined by Judges Griffith and Ginsburg) addressed disclosure in the collective-bargaining context. My focus, however, is on the standard for intervention in NLRB proceedings. You see, “DirectSat installs and services satellite television equipment for DirecTV.” The NLRB found that DirectSAT wrongly refused to disclose information to the union; that information included an agreement with DirecTV. Afterwards, DirecTV unsuccessfully tried to intervene. With that build-up, here is the paragraph I want to highlight:

    I did not know that. Sure, if you would have asked me yesterday, I would have said that it is unlikely that the Federal Rules (or an agency version of them) apply, but I would have thought that the standard is similar. The lesson? Even when you learn a lot about administrative law, you often still must “get up to speed on an individual agency.” That’s the sort of thing you learn from #AppellateTwitter.

     

    * On the subject of #AppellateTwitter, if you are in DC next week, think hard about attending this event.

     

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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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