D.C. Circuit Review – Reviewed: Let’s Play the * Game Again

by Aaron Nielson — Friday, July 7, 2017@Aaron_L_Nielson

Last year I introduced the Asterisk Game. For the table of authorities in briefs filed in the D.C. Circuit, “an asterisk may be placed next to those authorities on which the brief principally relies, together with a notation at the bottom of the first page of the table stating: ‘Authorities upon which we chiefly rely are marked with asterisks.’ Even though the marking of ‘principal authorities’ is optional, the table of authorities must identify each page of the brief on which the authority is cited; passim or similar terms may not be used.”*

That practice prompts a game. I’ve read all of the opinions from today and identified the most important authorities cited in each one. Based on just those asterisked authorities, can you tell what each opinion is about? As I explained last year, “I did not say that this would be a fun game.” But it’s still a game. Here goes.

The Asterisk Game: How Well Do You Know Precedent?

American Petroleum Institute v. EPA: American Petroleum Institute v. EPA, 683 F.3d 382 (D.C. Cir. 2012) (“API II”); American Petroleum Institute v. EPA, 216 F.3d 50 (D.C. Cir. 2000) (“API I”).

United States v. Pyles: Rita v. United Sates, 551 U.S. 338 (2007); United States v. Bigley, 786 F.3d 11 (D.C. Cir. 2015).

Nat’l Ass’n of Telecomms. Officers & Advisors v. FCC: Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017); ALFRED E. KAHN, THE ECONOMICS OF REGULATION: PRINCIPLES AND INSTITUTIONS (1970).

NRG Power Marketing, LLC v. FERC: Western Resources, Inc. v. FERC, 9 F.3d 1568 (D.C. Cir. 1993); City of Winnfield v. FERC, 744 F.2d 871 (D.C. Cir. 1984).

Bank of New York Mellon v. Henderson: Neal v. Kelly, 963 F.2d 453 (D.C. Cir. 1992).

National Mall Tours of Washington v. DOI: LeBoeuf, Lamb, Greene & MacRae, LLP v. Abraham, 347 F.3d 315 (D.C. Cir. 2003); Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978).

Getma International v. Republic of Guinea: TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (D.C. Cir. 2007)

Here are the answers:

API III: This one isn’t fair — there are two earlier cases with the same name. Today’s is the third case in the series, the subject of which is how to define “solid waste” under the Resource Conservation and Recovery Act. This time around, a per curiam panel of Judges Kavanaugh and Williams ruled against the EPA; Judge Tatel dissented. Here is a taste of the disagreement (which also gives you a sense of what this case is about): “The dissent sees nothing wrong with EPA’s exception procedure. But our colleague’s view is significantly colored by an assumption, not made by EPA, that the ‘comparable to or lower than’ standard is inherently reasonable and may not even require an exception. The dissent argues that the standard is reasonably limited to situations where constituent levels are ‘significantly’ higher or exceed a ‘small acceptable range.’ Dissent at 5. But significant as to what? Acceptable against what measure? The rulemaking gives no answer ….”

 

Pyles: Here, Judge Wilkins, joined by Judge Edwards, upheld a sentence in a child pornography case. “Specifically, Pyles contends that the District Court failed to consider that: (1) Pyles’ criminal conduct stemmed from his history of childhood abuse; and (2) the child pornography Sentencing Guidelines do not adequately consider the individual characteristics of each defendant. Pyles argues that the District Court failed to respond explicitly to these two arguments on the record, and that such non-response should be construed as nonconsideration and, therefore, error under Rita and its progeny.” Because the objections were not preserved, however, the panel reviewed them for plain error under Bigley, and affirmed. Judge Williams dissented — and it is a long dissent.

 

Nat’s Ass’n of Telecomms.: Can you guess who wrote this opinion? The cite to Kahn should be a hint. It’s Judge Ginsburg! He was joined by Judges Henderson and Pillard in this telecomm case. Here is the intro: “In 2015, the Federal Communications Commission reversed a decades-old, rebuttable presumption that determined whether state and local franchising authorities may regulate cable rates. The National Association of Telecommunications Officers and Advisors, the National Association of Broadcasters, and the Northern Dakota County Cable Communications Commission petition for review of the Order as an impermissible construction of the statute and as arbitrary and capricious. We deny their petition.” The Court distinguished Bais Yaakov of Spring Valley — the recent “fax advertisement” case — on these grounds: “There we held the Commission lacked authority to require that an opt-out notice be included in ‘solicited fax advertisements’ based solely upon a statutory provision that authorized the Commission to require opt-out notices on ‘unsolicited fax advertisements.’ We rejected the Commission’s suggestion ‘that the agency may take an action … so long as Congress has not prohibited the agency action in question.’ That is not the Commission’s position here. It is instead that its interpretation of § 543(a)(5) as nonexclusive, unlike the Petitioners’ reading, is consistent with the statutory ‘[p]reference for competition’ and the prohibition of rate regulation where the Commission finds there is ‘effective competition.'”

 

NRG Power: I confess, I did not know about either of the two FERC cases that are central to this one. But as Judge Kavanaugh explained (joined by Judges Brown and Sentelle), those two earlier cases establish the framework. “Regional Transmission Organizations are non-profit entities that oversee the transmission of electricity from generators to utilities. Under Section 205 of the Federal Power Act and FERC’s regulations, Regional Transmission Organizations file their proposed rate schemes with FERC. Section 205 allows FERC to suggest ‘minor’ modifications to a proposal made by a Regional Transmission Organization. Western Resources, Inc. v. FERC, 9 F.3d 1568, 1579 (D.C. Cir. 1993). Here, we must determine whether Section 205 allows FERC to suggest modifications that are more than ‘minor’ and, if not, whether FERC violated that limitation on its authority.” As you might imagine from that framing, the agency lost: “Section 205 does not allow FERC to make modifications to a proposal that transform the proposal into an entirely new rate of FERC’s own making. Here, FERC contravened that limitation on its Section 205 authority.”

 

Bank of New York Mellon: If you say you knew Neal v. Kelly off of the top of your head, I think you are deceiving yourself. It establishes that a verified complaint is the “functional equivalent of an affidavit” for summary judgment purposes. In this case, Judge Ginsburg (joined by Judges Tatel and Edwards) rejected various pro se arguments.

 

National Mall Tours: Here, Judge Wilkins (joined by Judges Tatel and Silberman) rejected a challenge to the Interior Department’s decision to award Big Bus Tours “a highly coveted 10-year concession contract with the Park Service that would allow it to provide guided tours on the National Mall.” Here is the standard of review: “In the context of reviewing agency contract decisions, our ‘role . . . is limited to determining whether the agency acted in accord with applicable statutes and regulations and had a rational basis for its decisions.’ LeBoeuf, Lamb, Greene & MacRae, LLP v. Abraham, 347 F.3d 315, 320 (D.C. Cir. 2003) [citation omitted]). In this limited capacity, we must refrain from ‘imposing [our] own views of proper procedures’ upon the Park Service and ‘improperly intrud[ing] into [its] decisionmaking process.” Id. (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 525 (1978)). National Mall Tours is similarly constrained. As a ‘disappointed bidder’ challenging the agency’s decision to award the contract to its competitor, National Mall Tours ‘must show either that the agency’s decision lacked a rational basis or that the ‘procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.'” The challenger lost. (There also is an interesting discussion of whether a party has standing to object to an agency’s failure to present information to Congress that is worth reading.)

 

Getma: Under D.C. Circuit law (TermoRio), the Court will enforce an annulled arbitration award only if the annulment is “repugnant to fundamental notions of what is decent and just” in this country. Judge Srinivasan, joined by Judges Henderson and Ginsburg, declined to get involved in a fight between a French company and the Republic of Guinea. “After Guinea terminated a concession agreement between the two parties, an arbitral tribunal issued a €39 million award (plus interest) in favor of Getma. Guinea appealed the award to the Common Court of Justice and Arbitration of the Organization for the Harmonization of Business Law in Africa (CCJA), a court of supranational jurisdiction for Western and Central African States. The CCJA set aside Getma’s award. Getma nonetheless seeks to enforce the annulled award in the United States. For us to intervene in this quintessentially foreign dispute, we would need to find the CCJA’s annulment of the award to be repugnant to the United States’s most fundamental notions of morality and justice. The district court held that Getma failed to satisfy that stringent standard, and we agree.”

So how’d you do? I confess — I knew a lot of these cases, but certainly not all of them.

 

* For what it is worth, I wouldn’t use passim in any court, even if they allow it. As a clerk, I hated seeing passim. Just use page numbers!

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. 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. Follow him on Twitter @Aaron_L_Nielson.

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