D.C. Circuit Review – Reviewed: Checking In On Judge Katsas

by Aaron Nielson — Friday, Mar. 15, 2019@Aaron_L_Nielson

Apologies; this is a quick post. I’m traveling.

Neomi Rao has now been confirmed. That event prompted a thought: How is Judge Katsas doing? Katsas, of course, was confirmed at the tail end of 2017. His experience may give Judge Rao a hint about what is in store.

With that question in mind, my research assistant pulled Judge Katsas’s majority opinions:

Saint Francis Medical Center v. Azar

Delaware Riverkeeper Network v. FERC

Big Bend Conservation Alliance v. FERC

American Hospital Association v. Azar

Old Dominion Energy v. FERC

ANR Storage Co. v. FERC

Her reaction? “You can tell he’s junior by the number of FERC opinions he was assigned. Poor fellow.”* I’m not sure that’s fair; FERC opinions can be fun. But her point is well taken — now is a good time for Judge Rao to start climbing the learning curve.

The Court also decided a bunch of cases this week.

In Lewis v. Mutond, the panel concluded that certain foreign defendants were not entitled to immunity. Judge Wilkins and Judge Randolph disagreed about why while Judge Srinivasan concluded that either theory would do. In particular, Wilkins relied on the Restatement (Second) of Foreign Relations Law. By contrast, Randolph reasoned that common-law immunity is displaced by the Torture Victim Protection Act and that “[i]t may well be that there is not now and never was any common law of immunity for foreign officials sued in the United States.”

In University of Southern California v. NLRB, Judge Tatel, joined by Judges Pillard and Sentelle, granted the university’s petition in part because the Board’s extension of the “majority status rule” conflicted with agency precedent. In Shi v. New Mighty U.S. Trust, Judge Rogers (joined by Judges Griffith and Pillard) dove into the finer points of the forum non conveniens doctrine.

Judge Williams had a busy week. In Lovitky v. Trump, he concluded (joined by Judges Tatel and Griffith) that the Mandamus Act does not extend to an officer’s “pre-election (or preappointment) acts.” And in People for the Ethical Treatment of Animals v. Department of Agriculture, Judge Williams (this time joined by Chief Judge Garland and Judge Katsas) affirmed a FOIA denial. This is my favorite part of the opinion:

Finally, in Missouri River Energy Services v. FERC, Judge Katsas (just kidding — it was really Judge Srinivasan) upheld FERC’s decision. Here is a sample of his analysis:

Judge Rao — this is what you have to look forward to! Congratulations.


* Of course, he also wrote separately from time to time.


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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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