D.C. Circuit Review – Reviewed: Judge Sentelle … Everywhere

by Aaron Nielson — Friday, Apr. 27, 2018@Aaron_L_Nielson

Ever since I was a 2L, I’ve had a soft spot for Judge David Sentelle. It is not because he is a “very bright and capable” jurist — though he surely is that. And it is not because he is a published author — though his book is quite good. It is not even because he wears boots and a cowboy hat — though he does that often. No, it is because he may have been the first person who was not a Nielson or a medical professional to see my first-born child.

Let me back up. My dear wife gave birth to our son when I was in law school, many years ago.* Honestly, we were terrified. Would we be good parents? Were we ready? What would life be like? He’s crying — what do we do? He’s hungry — what do we do? He spit up — what do we do? He won’t sleep — what do we do? And like many new parents, we were very protective. When we left the hospital, we wrapped our son tight to protect him from the cold Boston wind. And then we kept him home unless we absolutely had to go out; one of us would always stay in the apartment with him. Sure, family was allowed to visit. And we took him to required check-ups. But really, that was it.

Soon enough, we realized this was not sustainable — we had to see the world. So with trepidation, we put him in a coat, wrapped him in a blanket, and bound him in a stroller. And then we went for a walk. As we were walking across campus, we bumped into a large gentleman in a cowboy hat who wanted to peek at the baby. As proud parents, we let him, and we were especially pleased when he complimented our son. Sure enough, that gentleman was Judge Sentelle. He was there for a speaking engagement and was out taking a walk of his own. We were taken aback. Meeting a judge is always a bit of a shock to the system. Growing up, I didn’t meet a lot of judges — indeed, I don’t think I met any. Meeting one in a cowboy hat was even more surprising. And meeting one in a cowboy hat who wanted to see our baby was most surprising of all.

This chance meeting, to be sure, was only a small part of the walk — it probably took no more than 45 seconds. And afterwards, we met many other people too. Then we walked home, feeling better about life. When I think of Judge Sentelle, my mind often returns to that pleasant little walk.

This week, Judge Sentelle’s name was everywhere. During the “Travel Ban” oral argument, for instance, Neal Katyal mentioned “Judge Sentelle.”

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The reference surprised me — was he discussing a different Judge Sentelle? The case was on appeal from the Ninth Circuit, after all. So I check the briefs, and sure enough, Judge Sentelle is cited there too, for an opinion he authored in 1995.

Likewise, in that same oral argument, there was this exchange:

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Sure, Judge Sentelle did not participate in the Lucia oral argument. But I didn’t expect any reference at all to the D.C. Circuit. And I suspect Judge Sentelle has thought about appointment and removal a fair bit in his life.

After that, Judge Sentelle started popping up all over the place. “Judge Sentelle” came across my Twitter feed; he attended the renaming of the Center for the Study of the Administrative State (which is now the C. Boyden Gray Center for the Study of the Administrative State). I also caught a bit of the confirmation hearing for Andrew Oldham (a classmate from law school). And sure enough, more Judge Sentelle! Oldham clerked for him. Yesterday, moreover, the Senate confirmed new leadership for the Federal Trade Commission. What does that have to do with Sentelle? The acting Chair of the FTC, Maureen Ohlhausen, also clerked for Sentelle, and she will give up her spot on the Commission when she is confirmed to the Court of Federal Claims.

When I started reading this week’s cases, I was sure Judge Sentelle would author one of them — it has been that kind of week. He didn’t. Even so, his presence is still felt.

Consider Soundboard Association v. FTC, arguably the most significant case of the week. This case is about what counts as “final agency action” — a prerequisite for review under the Administrative Procedure Act. Judge Wilkins (joined by Judge Rogers) held that an FTC staff letter is not enough. Judge Millett dissented. Both options are worth your time; professors may want to assign this one to students hoping to understand the current law. (For what it is worth, this is how Judge Millett opened her dissent: “Why let reality get in the way of a good bureaucratic construct?”) What does this case have to do with Judge Sentelle? Well, as noted, the acting Chair of the FTC is a Sentelle clerk. More than that, perhaps the leading scholar on the subject is Kristin Hickman. Sure enough, she’s a Sentelle clerk too.

Consider next Arch Coal, Inc. v. Acosta. Here, Judge Edwards (joined by Judges Millett and Wilkins) held that challenges under the Black Lung Benefits Act must be heard in circuit courts, not district courts. This case covers a lot of ground about how to evaluate exclusive jurisdiction. Students should read it too. Relevant to this post, it also contains a discussion of “final agency action”! Thus, see Hickman, supra (Sentelle clerk).

Next we have United States v. Kpodi, otherwise known as Kpodi II. In 2016, the D.C. Circuit vacated Mr. Kpodi’s sentence; he was then resentenced to the same sentence. Judge Edwards (joined by Judges Henderson and Tatel) decided the government had the better of the argument this time:

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I admit there isn’t a great connection here to Judge Sentelle. But sentencing is another subject Sentelle has thought a lot about. Here is a lengthy dissent he wrote a while back on the subject.

Finally, City of Clarksville v. FERC. This is a very well written opinion by Judge Wilkins (joined by Judges Griffith and Randolph) — and that’s hard to do in a FERC case. Here is the key passage:

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(There is more to it than just this part, but this is a pretty key piece of the analysis.)

What does this have to do with Judge Sentelle? Probably nothing. But it’s pretext enough to quote this passage from Sentelle:

[This story] was brought to my mind by two apparently unrelated occurrences: the first being the failed nomination of my friend and former colleague Robert Bork, the second being a request for time off by one of my law clerks. More on the law clerk later. We turn first to the failed fight for the confirmation of Brother Bork. During that battle, many of his supporters, my fellow conservatives, renewed their expression of our concerns about activist liberal judges who overstep their proper bounds of office and try to be legislators and executives. All of my career, not only as a judge but as a lawyer and law student, I’ve fretted about the extended power of the judge who takes over and operates a prison, a school system, or a housing authority. That’s why it becomes especially ironic that I am, so far as I know, the only federal judge who took over and operated a hippie reunion.

And that’s the week.

 

* There weren’t a lot of babies born to law student families while I was there. Another of my favorite memories from law school was when my corporations teacher, Professor Robert Clark, sua sponte decided to share my news on my first day back to class, and my fellow students erupted in smiling applause. On a day that I had a lot on my mind, that small act of kindness meant a lot. It’s true — kindness is never wasted.

 

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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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