D.C. Circuit Review – Reviewed: On Second Thought ….

by Aaron Nielson — Friday, Mar. 29, 2019@Aaron_L_Nielson

Unfortunately, this will be a very quick post — I’m traveling today … in the snow.

I love hate snow. It’s awful to wake up in the morning and see the world covered in it. Look, perhaps I wouldn’t hate snow so much if it only happened every once in a while. But it is almost April and there is still snow. How could anyone love snow? I hereby disavow anything nice I’ve said about snow.

We all have second thoughts. Justice Scalia, for instance, concluded that his opinion in Auer was a mistake. Here is how Justice Thomas* explains it:

The D.C. Circuit had a quiet week in terms of admin law. (In United States v. Vasquez-Benitez, Judge Henderson, joined by Judges Tatel and Ginsburg, concluded that the district court did not clearly err in releasing Vasquez-Benitez on bail pending his criminal trial. But the panel reversed the district court’s decision to prohibit ICE from civilly detaining Vasquez-Benitez pending removal. So, I suppose, the D.C. Circuit does decide some immigration cases. In In re LeFande, Judge Pillard, joined by Judges Millett and Edwards, affirmed the district court’s order holding LeFande in criminal contempt.) So why not chat a bit about the Supreme Court’s oral argument in Kisor v. Wilkie?

My predication going into the argument? Auer is toast. Why else grant cert only on that question? That still may happen. (For what it is worth, there are good legal reasons to overrule Auer, which is a significant expansion of the much more limited Seminole Rock. And if the Court is careful, it can overrule Auer without unintended consequences.) After reading the transcript, I’m not sure — perhaps the Chief Justice has had second thoughts of his own. Or, also possible (and perhaps more likely), the Court is inclined to put additional limits on Auer but for now at least not go all the way.

I’ve heard appellate litigators quip that the Chief Justice doesn’t like to overrule more than one opinion a term. If so (I’ve never gone back and checked), and if Auer isn’t that opinion (and, again, it may very well be), then what is? Williamson County? Nevada v. Hall? I’ll suppose we’ll see!


* Who would know.


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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.

One thought on “D.C. Circuit Review – Reviewed: On Second Thought ….

  1. William Yeatman

    Ditto on the Kisor oral arguments. Going in I thought: 1) The current court is ready to jettison Auer; and 2) even the government is willing to gut the doctrine. After oral arguments, I think: 1) Roberts seems wary of rocking the boat, and now I’m unsure what Kavanaugh is thinking; and 2) the SG seems to have argued that the case could be decided w/o Auer (thereby leaving Auer undisturbed). Prognosticating SCOTUS is a fool’s errand, but my guess would be 4-3-2:
    RBG, Sotomayor, Kagan, Beyer–keep Auer
    Thomas, Gorsuch, Kavanaugh–reject Auer
    Roberts, Alito–accept SG’s limitations [controlling opinion]


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