D.C. Circuit Review – Reviewed: The Academy and PHH Corp.

by Aaron Nielson — Friday, Feb. 2, 2018@Aaron_L_Nielson

Earlier this week, as I was reading the en banc decision in PHH Corp. CFPB, it struck me that the Court cited a large number of law review articles. So for this bonus edition of D.C. Circuit Review – Reviewed, I asked my dutiful research assistants to put together a chart of the articles cited and who cited them. Here is the chart*:

PHH Spreadsheet - Law Review Articles_1

PHH Spreadsheet - Law Review Articles_2

PHH Spreadsheet - Law Review Articles_3

PHH Spreadsheet - Law Review Articles_4

PHH Spreadsheet - Law Review Articles_5

My instinct was right — more than 50 articles are cited. Rachel Barkow and the Texas Law Review are the “winners.” Her article Insulating Agencies: Avoiding Capture Through Institutional Design is cited in four opinions: the majority, Judge Griffith’s concurrence in the judgment, and the dissents of both Judges Henderson and Kavanaugh. Four separate articles by John Manning are cited — two in the majority opinion, one in the Griffith concurrence, and one in the Kavanaugh dissent. The Court cites two student notes — including one note twice. Numerous visitors to Notice & Comment are also cited: Neomi Rao, Peter Strauss, Adrian Vermeule, Kent Barnett, Cass Sunstein, and perhaps others. Judge Edwards — being senior — did not sit with the en banc Court, but the Kavanaugh dissent cites his article on collegiality. Many of the cited articles are fairly recent, but one dates back to 1937 and another to 1942. Both Judges Henderson and Kavanaugh cite Todd Zywicki’s 2013 article from the George Washington Law Review, The Consumer Financial Protection Bureau: Savior or Menace? (They both vote “menace.”) Judges Tatel and Randolph don’t cite any law review articles, but that probably reflects the more limited scope of their respective opinions.

I do not have any grand thoughts about this. But it is interesting.

For what it is worth, if I were a law student looking for a subject to write about, I’d pay close attention to the debate between Judges Wilkins and Griffith about the meaning of “inefficiency.” (Also look at footnote 1 of Judge Randolph’s dissent, where he briefly chimes in.) It is a subject that has received less scholarly attention (students should be wary of attacking an issue that has already launched a lot of scholarship) and, if Judge Griffith is right that “inefficiency” grants the president a great deal of discretion to remove the head of an “independent” agency for policy disagreements, the consequences would not be limited to the CFPB. By contrast, the debate in the other opinions, while obviously tremendously important, is largely confined to the CFBP (though, to be sure, it may have effects elsewhere). That said, all of the opinions are worth reading and thinking through.

***

The D.C. Circuit decided three cases in addition to PHH. Two are not “admin law” opinions.

In Collins v. PBGC, Judge Henderson (joined by Judges Rogers and Sentelle) affirmed the district court’s denial of “counsel’s motion to compel payment of fees that they say should have been but were not paid as a result of the PBGC’s alleged footdragging” because, held the Court, the agreement’s “ten-year period for payment of attorneys’ fees is unambiguous and has expired.” In Leidos, Inc. v. Hellenic Republic (“The Hellenic Republic is popularly known as Greece”), Judge Henderson (this time joined by Judges Tatel and Kavanaugh) addressed an unusual question about currency fluctuations and the 2004(!) Summer Olympic Games. Here is how the opinion begins: “This case is a testament to the rise of the dollar — and the precipitous decline of the euro — over the last four years.” I like this sentence because it is something I’ve never thought about before: “Historically, U.S. and English courts were reluctant to enter judgments in foreign currencies.” And this one too: “Our opinion today does not require us to plumb the murky waters of currency conversion in federal court.” (Perhaps this case also can launch a student note; the Court had no occasion to “plumb” those “murky waters” because the tough issues were not preserved.)

Finally, in New England Power Generators Association, Inc. v. FERC, Judge Wilkins (joined by Judges Srinivasan and Sentelle) granted petitions to review FERC’s approval of tariff rules that benefited new electricity suppliers. The Court concluded that FERC had not engaged in “reasoned decisionmaking” when it “failed to respond to the substantial arguments put forward by Petitioners and failed to square its decision with its past precedent.” The Court explained, among other points, that the agency’s justifications for departing from its precedent “amounted to conclusory statements that dismissed Petitioners’ concerns without providing reasoned analysis.” The Court concluded that “[a]lthough FERC may be sincere in its change of heart [in departing from precedent] . . . [it] must provide some analysis and explanation in its Orders regarding why it changed course.” (An aside: This opinion is technical and yet still reads really well. That is difficult to do.)

And with that, this post must come to an end. I have law review articles to write!

 

* I apologize that the chart is fuzzy. If you click on the hyperlink, you will get a non-fuzzy version.

 

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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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