D.C. Circuit Review – Reviewed: “Substantially For the Reasons Set Forth ….”

by Aaron Nielson — Friday, Oct. 27, 2017@Aaron_L_Nielson

This was a remarkable week in the D.C. Circuit — and, frankly, a confusing one.

Here is a very quick version of the backstory (though if you’re reading this post, you already know it). Last week, Judge Kavanaugh (joined in the order by Judge Henderson) heard an emergency appeal and concluded in a short order that the government should be allowed to seek a sponsor for “a minor unlawful immigrant in HHS custody, including for a minor who is seeking an abortion,” so long as it could be done expeditiously. Judge Millett dissented and issued her statement a few hours later. Judge Henderson stated that her separate statement would issue “within five days.”

This week, however, something unusual happened — the en banc Court vacated last week’s order. This is noteworthy in at least two respects. En banc rehearing in the D.C. Circuit is very rare. And the en banc Court’s order contains almost no analysis:

FURTHER ORDERED that appellants’ emergency motion for stay pending appeal be denied because appellants have not met the stringent requirements for a stay pending appeal, see Nken v. Holder, 556 U.S. 418, 434 (2009), substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett. The case is hereby remanded to the district court for further proceedings to amend the effective dates in paragraph 1 of its injunction. The dates in paragraph 1 have now passed, and the parties have proffered new evidence and factual assertions concerning the expected duration of custody and other matters. The district court is best suited to promptly determine in the first instance the appropriate dates for compliance with the injunction. In so doing, the district court retains full discretion to conduct proceedings and make any factual findings deemed necessary and appropriate to the district court’s exercise of its equitable judgment, consistent with this order, including with regard to any of the factual disputes that were raised for the first time on appeal. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330-31 (2006); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 305 (D.C. Cir. 2006).

“[S]ubstantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett.” What does “substantially” mean in that sentence? Does the en banc Court agree with every statement in Judge Millett’s dissent? Presumably not, or it would have omitted “substantially.” So what exactly does the en banc Court disagree with? One of the rules of D.C. Circuit Review — Reviewed is that I don’t share my opinion of the Court’s decisions. But I will ask this question: If an issue is deemed important enough for en banc rehearing, then isn’t it also — almost by definition — important enough for real analysis without wiggle words like “substantially”? I realize the Court was moving quickly. Maybe certain judges did not feel they had enough time to write it all out. If so, couldn’t the Court have issued its decision and indicated that a full statement was forthcoming?

I’ve gone back and checked the D.C. Circuit’s use of “substantially for the reasons set forth”; the term has been used 23 times (per Westlaw). Of those 23, almost all uses were in unpublished orders of three judge panels.* None was in a context remotely like the one here. Perhaps an expanded search would find an example. But that wouldn’t make such language any less confusing.

And I’m not the only one who is confused. Judge Kavanaugh’s dissent (joined by Judges Henderson and Griffith) makes the same point:

The majority’s decision rules against the Government “substantially for the reasons set forth in” the panel dissent. Given this ambiguity, the precedential value of this order for future cases will be debated. But for present purposes, we have no choice but to assume that the majority agrees with and adopts the main reasoning for the panel dissent. Otherwise, the majority would have no explanation for the extraordinary step it is taking today. For accuracy, I therefore use the word “majority” when describing the main points of the panel dissent. (If any members of the majority disagreed with any of the main points of the panel dissent, they were of course free to say as much.)

I’m not going to get into the details of the en banc Court’s analysis — because the Court did not share those details. One could re-read Judge Millett’s original dissent line by line and guess which parts the en banc Court agrees with and which parts it rejects. But what good would that do without an answer key? I will note, however, that Judge Millett (writing for herself) concurred in the en banc Court’s order and that Judge Henderson (also writing for herself) dissented. Both of those separate writings are noteworthy. As a preview, Judge Henderson’s dissent raises hard questions that go unanswered; presumably the en banc Court’s response is that they are waived.

***

The Court issued two other opinions this week.

In Sierra Club v. EPA, Judge Williams (joined by Judges Henderson and Griffith) rejected claims regarding certain types of particulate matter. In particular, “petitioners — environmental and community organizations — contend[ed] that the Environmental Protection Agency has violated the Administrative Procedure Act and the Clean Air Act by modifying, without notice and comment, its prior understandings of how to measure a proposed transportation project’s impact on ambient levels of PM2.5 and PM10.” The Court concluded it had no jurisdiction over either claim. As to PM2.5, petitioners could not show any injury because two of the locations identified were not in the right area and as to the third location, “petitioners have made no showing that the 2015 methodology will be used by the I-710 project sponsors or that applying that methodology would make any difference.” And as to PM10, there is no final agency action: “In their claim that the change in the PM10 methodology is binding on project sponsors and on the relevant agencies, petitioners disregard both the plain language of the Guidance and the way it has been administered.” In other words, sometimes guidance is just guidance. (This opinion is worth reading, especially for those interested in how to identify legislative rules. The Court, for instance, concludes that the 2010 Guidance was not a legislative rule either, even though it went through notice-and-comment rulemaking.)

In Center for the Study of Services v. HHS, the Court (per Judge Rogers, joined by Judges Millett and Randolph) reversed an award of an injunction granting prospective relief under FOIA. Long story short, the Center sued HHS seeking “data related to the insurance plans that would be offered on the new healthcare exchanges.” The government cited “Exemption 4, which permits agencies to withhold ‘trade secrets and commercial or financial information obtained from a person and privileged or confidential.'” The district court’s order stated that Exemption 4 was inapplicable to the information and the government on appeal did not challenge that aspect of the order. “Rather, it challenge[d] the district court’s order requiring release of such information ‘each year,’ which it contends ‘essentially gives [Consumers’ Checkbook] “automatic access'” to data without even requiring Consumers’ Checkbook to file a FOIA request.” The Court determined that while prospective relief is available in some circumstances in the FOIA context, the government, in this instance, was not “delinquent.” Further, HHS “represent[ed] here that in responding to Consumers’ Checkbook’s future requests for such data it would not assert the grounds that the district court rejected,” and that there was “no apparent ground to conclude that a permanent ‘automatic access’ injunction was required.”

Judge Randolph wrote a short concurring opinion:

While I join the majority opinion in full, I think it worth emphasizing that although equitable remedies are discretionary, they are not left to the district court’s “inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F. Cas. 30, 35 (C.C. Va. 1807) (No. 14,692d) (Marshall, C.J.).

This appears to be one of Judge Randolph’s favorite quotes.

* See, e.g., Calhoun v. Johnson, No. 99-5126, 1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 1999) (“The district court’s decisions as to appellant’s retaliation and discriminatory failure to train claims under Title VII … are summarily affirmed substantially for the reasons set forth in the district court’s opinions filed March 31, 1998, and March 31, 1999.”). For what is worth, I’m not a fan of “substantially” in any context. But there is a world of difference between run-of-the-mill unpublished orders and an en banc decision that triggers two dissents.

 

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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 serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also 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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