D.C. Circuit Review – Reviewed: October in July

by Aaron Nielson — Friday, July 12, 2019@Aaron_L_Nielson

The D.C. Circuit doesn’t hear cases over the summer, but it sure does issue a lot of opinions.

Well, except for this week. Today, the D.C. Circuit heard argument. And this week, the Court only issued two opinions. This doesn’t feel like July at all!

The D.C. Circuit stops hearing oral argument in May and starts again in September. But the world doesn’t stop during the summer. So sometimes the Court has to schedule a mid-break argument or two. That’s what happened this week:

What’s going to happen in these cases? We’ll find out soon.*

The D.C. Circuit only decided two cases. By contrast, here is the list of cases decided last year for the analogous week:

The two opinions, moreover, while interesting, are also fairly typical. Summer decisions are disproportionately full of drama and dissent; not so with these cases. Hmmm. This isn’t July-ish week at all; it feels like an October week:

What’s going on? Random chance. But I’ll take it. It’s nice to have a light week every once in a while.

In Temple University Hospital, Inc. v. NLRB, Judge Ginsburg — joined by Judges Henderson and Tatel — reaffirmed the rule from Chenery I:

Whether judicial estoppel applies in NLRB proceedings is an interesting question. The Supreme Court has said that an agency generally must give collateral estoppel effect to a court decision, so my instinct is that judicial estoppel should apply too. But I haven’t thought deeply about it. There is a reasonable chance that this case — or at least this issue — will come back to the D.C. Circuit. That said, the NLRB has been around for a pretty long time. If this issue is still an open question, maybe it doesn’t come up all that often.

The second case this week is similar to the first, at least analytically. In Kornitzky Group, LLC v. Elwell, Judge Srinivasan — joined by Judges Edwards and Randolph — also reaffirmed the rule from Chenery I:

This an interesting case too; I learned about airplane repair and, with more cross-cutting significance, willfulness. Note also that there was no discussion of Auer Kisor deference, even though the case involved agency regulations.

And that’s what October in July feels like. Now, if only it weren’t so hot outside ….

 

* I suspect there may be a special post; we’ll see what the Court does.

 

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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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