D.C. Circuit Review – Reviewed: In Which Your Host Is Lazy

by Aaron Nielson — Friday, Aug. 3, 2018@Aaron_L_Nielson

Here at Notice & Comment, I try to come up with a fun* theme each week. This week, however, I’m going to play a get-out-of-fun-theme-free card. The Court decided too many cases. Alas.

Here is the rundown.

Let’s start with the FERC cases. In Verso Corporation v. FERC, Judge Wilkins (joined by Judges Rogers and Srinivasan) denied a petition challenging FERC’s “order[ing] refunds to customers who paid too much, funded by surcharges on customers who paid to little.” I’m not sure how broadly applicable this decision is (it is about the filed-rate doctrine, after all), but it is interesting. In NextEra Energy Resources, LLC v. FERC, Judge Sentelle (joined by Judges Wilkins and Randolph) denied NextEra’s petition to review “FERC orders that carve out an exception to the minimum offer price rule for certain qualifying renewable energy resources in the New England energy market.” I’ll leave it at that! And in Old Dominion Electric Coop. v. FERC, Judge Katsas (joined by Judge Henderson, with Kavanaugh sitting this one out) paid his dues 🙂 addressed whether FERC erred in allowing “electric utilities in the mid-Atlantic region [that in the past] shared the costs of high-voltage transmission lines” to cease cost-sharing. The Court held that FERC did err — and here is a sample: “FERC combines dissimilar categories of projects. As explained above, the 98% of projects highlighted by FERC are low-voltage ones with no regional benefits, whereas the 2% of projects targeted by the amendment are high-voltage ones conceded by FERC to have significant regional benefits.”

Next, the NLRB cases. In NLRB v. Hospital of Barstow, Inc., Judge Srinivasan (joined by Judges Griffith and Wilkins) rejected Barstow’s “conten[tion] that the Regional Director [that certified the union] lacked delegated authority to conduct and certify the representation election because … the Board did not have a statutorily mandated quorum of three members.” As backstory, read this post from three years ago and this post from two years ago. Now you will understand the Court’s conclusion: “As in our previous decisions, we again sustain the Board’s understanding of the statute as reasonable. We also reject the hospital’s various challenges to the Board’s finding of unfair labor practices and to the remedies imposed by the Board.” In CC1 Limited Partnership v. NLRB, Judge Griffith (joined by Judges Rogers and Srinivasan) remanded: “It is unclear to us how CC1’s distribution of the letter affected the Board’s decision. Perhaps the Board thought the striking employees’ knowledge of the Union’s position wasn’t important unless that knowledge came from the Union itself. But that’s just a guess, and we can’t rely on guesses.” And in Advanced Life Systems Inc. v. NLRB, Judge Millett (joined by Judge Sentelle, with Judge Kavanaugh sitting this one out too) opened her opinion is a wonderfully Judge Millett-kind of way:

Advanced Life v. NLRB

Now, the criminal cases. United States v. Murray, Chief Judge Garland (joined by Judges Srinivasan and Millett) issued an interesting opinion about plea bargains. Here is how the opinion begins: “We reject the government’s contention that it did not breach its plea agreement with Murray. Nevertheless, because Murray’s counsel failed to object, we can grant Murray relief on this ground only if the government’s breach was plain — that is, clear or obvious — which it was not. That, however, does not end this matter. Because we also reject the government’s contention that Murray has no colorable claim of ineffective assistance of counsel, we remand the case to the district court for further proceedings.” If this is your field, give this opinion a deeper dive. Here is a footnote, however, that caught my attention: “At oral argument, Murray’s appellate counsel advised, for the first time, that he ‘reserve[d] the right’ to argue for vacatur of the plea agreement on remand. Recording of Oral Arg. 8:40. We leave that issue for the district court to address.” And in United States v. Eshetu, a per curiam panel (Judges Henderson and Millett, with Judge Kavanaugh out here too) issued a 4-page opinion extending Sessions v. Dimaya to 18 U.S.C. § 924(c). This is the most interesting argument, it seems to me: “Dimaya nowise calls into question Kennedy’s requirement of a categorical approach. To the contrary, a plurality of the High Court concluded that section 16(b)—which, again, is textually parallel with section 924(c)(3)(B)—is ‘[b]est read’ to ‘demand[] a categorical approach’ ‘even if that approach [cannot] in the end satisfy constitutional standards.'” And in United States v. Manafort, Judge Wilkins (joined by Judges Tatel and Griffith) affirmed the district court’s “pretrial detention order issued after revoking release.” This case has attracted a lot of attention — for obvious reasons.

And now, the two “DOJ” defendant cases. In Sluss v. DOJ, Judge Rogers (joined by Judges Srinivasan and Wilkins) affirmed the district court’s dismissal of Sluss’s claim that the Attorney General’s “denial of his transfer application was arbitrary and capricious because [it was] based on improper factors.” Sluss sought “a transfer under a treaty between the United States and Canada to a Canadian prison” for the remainder of his jail term. Sluss claimed that in denying the transfer, the “Attorney General considered factors beyond the scope of … the Treaty.” The Court determined that it had “subject matter jurisdiction to consider Sluss’s case” but that “the scope of judicial review is narrow.” On the merits, it held that “the Attorney General properly considered factors such as Sluss’s long-term U.S. domicile, the U.S. residency of his family, his insubstantial contacts with Canada, and the absence of language, cultural, or familial hardships” in denying his application. I have never thought about this issue even once before in my life; interesting.

In Bartko v. DOJ, Judge Millett opened her (lengthy) opinion (joined by Judges Griffith and Pillard) this way:

Bartko v. DOJ

This case concerns FOIA requests regarding what exactly happened. “OPR categorically refused to acknowledge the existence of, let alone disclose, any potentially relevant documents outside of Bartko’s individual case. And even with respect to Wheeler’s conduct in Bartko’s case, OPR held back substantial amounts of material, asserting a sweeping breadth for its claimed exemptions.” The Court disagreed in relevant part.

And the last two. In Katopothis v. Windsor-Mount Joy Mutual Insurance, Judge Griffith (joined by Judge Sentelle, with Kavanaugh sitting it out), the Court addressed a flooded beach home and ensuing litigation. And finally, check out the summary of Archdiocese of Washington v. WMATA at Circuit Breaker (Kirkland represents one of the parties, so I’ll let this one go).

Enjoy the weekend. I’ll up my game next week.

 

* Fun is a relative term.

 

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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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