D.C. Circuit Review – Reviewed: More Artful Dodging

by Aaron Nielson — Friday, July 27, 2018@Aaron_L_Nielson

A couple of weeks ago, I rebutted — well, at least I think so — the suggestion that Judge Kavanaugh is an artful dodger. This week, however, I’m going to backpedal a bit. It turns out that Kavanaugh may very well have to be an artful dodger once he gets to the Supreme Court. Let me explain.

Especially now that Sports Illustrated has chimed in, it is not a secret that the Supreme Court is home to “The Highest Court in the Land.” The stories are true. Yes — basketball is played at the Supreme Court. Yes — Supreme Court justices sometimes play. Yes — there is annual game against the D.C. Circuit. And yes — the D.C. Circuit is regularly destroyed in that game.*

But basketball isn’t all that the “Highest Court in the Land” is used for. Here’s something you probably don’t know. The Supreme Court sometimes hosts a dodgeball game between the clerks and the staff. I’ll repeat: The Supreme Court sometimes hosts a dodgeball game between the clerks and the staff. There are a bunch of balls, a bunch of players, and a lot of hard throws. I would be surprised if the clerks ever win that game. A clerkship is a great job but reading and writing is not the most active way to spend the day.

One of my regrets is that I didn’t play in the dodgeball game. What was I thinking? But I do recall the scene. Justice Sotomayor was the master of ceremonies, but — wisely — did not play in the game. There was a visiting delegation of judges from another country (I don’t remember which one; I wonder what they thought about the United States afterwards). And then the players started throwing at each other. It was fairly surreal.

So here is the question: Assuming Judge Kavanaugh is confirmed to the Supreme Court, will he play in the dodgeball game? I suspect not; basketball is one thing, but dodgeball is something else entirely. But if he does play, he better be an artful dodger.

The D.C. Circuit decided only eight cases this week. In the spirit of dodging, I’m going to identify either the main issue that each panel did not decide or how it distinguished precedent.

In Sorenson Communications, LLC v. FCC, Judge Griffith (joined by Judges Millett and Pillard) rejected challenges to the FCC’s continued use of a “three-tiered rate structure” for reimbursements to providers of “Video Relay Service (VRS) [which] enables people with hearing or speech impairments to communicate with people who use standard telephones.” The Court concluded it was reasonable for the agency to conclude that “[w]hatever inefficiencies it may introduce in the short term, the tiered-rate structure is essential to prevent the greater long-term inefficiency that would result from a monopoly.” And here is how the Court distinguished precedent:

Sorenson Communications, LLC v. FCC

In Palmieri v. United States, Judge Henderson (joined by Judges Griffith and Katsas) affirmed the district court relating to the revocation of Palmieri’s “security clearance” and the loss of “gainful employment with a government contractor.” Palmieri raised “an assortment of constitutional and statutory claims”; indeed, he alleged he was put “through a ‘Kafkaesque’ investigation and ‘Star Chamber’ proceeding.” The Court disagreed for sundry individual reasons. While joining the Court in full, Judge Katsas concurred:

Palmieri v. USA

In Utility Worker Union of America Local 464 v. FERC, Judge Pillard (joined by Judges Rogers and Millett) denied Utility’s petition to review FERC’s certification of two “system-wide [forward capacity] auction[s] as competitive” after the “permanent retirement” of a power station. This is a fact-bound opinion — although the facts are pretty interesting (e.g., a Commission deadlock). Here, the panel did not really dodge much but did emphasize the lack of evidence:

Utility Workers Union of America Local 464 v. FERC

Next, in Waters v. Lockett, Judge Griffith (joined by Judges Tatel and Wilkins) disagreed that Walters’ appellate counsel was ineffective or that the evidence didn’t support conviction. Along the way, the Court concluded that it need not consider all of Walters’ arguments:

Waters v. Lockett

In Hill v. Associates for Renewal in Education (which Kavanaugh dodged entirely, see the Court’s footnote), Judge Wilkins (joined by Judge Rogers) addressed the Americans With Disabilities Act and affirmed in part and reversed in part on the facts alleged. Judge Wilkins also concurred about remedies. It’s an excellent concurrence — and it explains the issue the Court did not decide:

Hill v. Associates for Renewal in Education

There is another FERC case: City of Boston Delegation v. FERC. Judge Srinivasan — who, for what it is worth, also knows a thing or two about basketball — addressed natural gas in the Northeast; he was joined by Judges Henderson and Williams. The Court did not decide the merits of the challenge filed by the “City of Boston Delegation”:

City of Boston Delegation v. FERC

In Good Fortune Shipping SA v. Commissioner of IRS, Judge Griffith (joined by Chief Judge Garland and Judge Srinivasan) addressed shipping taxes. I’ll spare you the details of the scheme (if you are a tax person — and I am not — you will want to give it a closer read). But you definitely need to read two paragraphs; the Court does not decide whether the statute is ambiguous or not but instead jumps straight to Chevron Step TWo:

Good Fortune Shipping SA v. Commissioner of IRS

Interesting. I need to think more about this; it makes a lot of sense, and I don’t see any categorical problem but, still, funny things can happen when a court has discretion to choose which step goes first.

Finally, the last case this week is Owens v. BNP Paribas, S.A., also authored by Judge Griffith (this time joined by Judges Wilkins and Randolph). This awful case concerns a terrorist attack in 1998. Greatly simplified, the Court concluded that a French bank cannot be held liable. The Court did not decide, however, whether the bank actually aided and abetted terrorism. Why not? Because Congress did not create a cause of action that covers aiding and abetting (and the Court wasn’t too impressed by legislative history either):

Owens v. BNP Paribas

 

Thank goodness there were (relatively) few cases; it gives me more time for other things. This summer, for instance, my plucky progeny and I have begun playing a game on the trampoline. You guessed it: dodgeball.

 

* I didn’t play in the game when I was clerking for Judge Brown; I don’t remember why. I did play, however, when I was at the Supreme Court. But you know who didn’t play? Judge Kavanaugh! He dodged the game entirely. In his defense, however, that was probably for the best, because it wasn’t much of a game. The court has low ceilings; if you aren’t used to them, your shot will suffer. That’s why I think the DC Circuit clerks almost always lose.

 

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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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