D.C. Circuit Review – Reviewed: The Middle Chapters

by Aaron Nielson — Friday, Jan. 12, 2018@Aaron_L_Nielson

Have you ever read the unabridged Les Misérables?* One of my favorite activities — unfortunately, not one I do all that often — is reading 19th century fiction. For a long time, my favorite author was Thackeray. Recently, however, I’ve started re-reading the greatest hits of Victor Hugo. And sure enough, Les Misérables is an amazing book. No doubt, it contains implausible coincidences. And sometimes Hugo spends a chapter or three to say what a good paragraph could cover. On the whole, however, it is extraordinary.

Abridged versions of Les Misérables may omit the Waterloo chapters, among others. They may also skip over some of Hugo’s musings about the nature of insurrection and the history of Paris. I’m sympathetic. Hugo does spend a lot of words on subjects that, candidly, do not have an essential connection to the story. And I’ve already stated my opinion that sometimes even when something is essential to the story, he can still be unduly liberal with his words. So one may be tempted to skim or skip. Resist that temptation. Sure, he can be wordy, but many of the the little details he throws in are important. And as you read, you never know which ones are going to play major roles when all is said and done. In short, read the middle chapters carefully.

The point holds true for administrative law. Much has happened this week, but we don’t have resolution yet about any of it. Some stories that seem important now may fade away. And some things that have not attracted a lot of attention may prove to be significant. But the point is that we are in the middle chapters — things that are happening now have the potential to matter a great deal for what will happen later.

Consider the Congressional Review Act. This week it was used in a particularly interesting way. Senate Democrats have decided to force a vote on the FCC’s reversal of so-called “net neutrality.” Why is this interesting? Because it suggests that the Congressional Review Act may be here to stay — not just as a formal matter (it isn’t going to be repealed anytime soon) but as a practical matter. In 2015 and 2016, Congressional Republicans used the CRA to highlight regulations they disapprove of. Hence, the CRA, which had been little used before, become more important. Then came 2017, in which it was very important, as it was used to actually eliminate regulations. The decision to use it for the FCC’s rule, however, suggests that Congressional Democrats — like the 2015 and 2016 Republicans — will also begin using it to try to make political points. If so, the CRA may prove to be a much more prominent tool in future years than it has hitherto been, even when the votes are not there in Congress to eliminate an agency’s rule.

Consider also the Supreme Court’s certiorari grant in Raymond J. Lucia Companies, Inc. v. SEC. The case is interesting on its own terms; the Appointments Clause is fascinating. Yet the High Court’s forthcoming decision, presumably in June, may have very significant effects. This is especially true when the opinion is read against the backdrop of Free Enterprise Fund’s prohibition on double “for cause” removal. To be sure, there may be paths to rule against the government in Lucia (if the Court does so) that won’t have serious repercussions for administrative adjudication. But it is not at all clear that the Court will take them. (I predicted be a GVR; I was wrong.)

And all the while, the Office of Information and Regulatory Affairs is trying to make retrospective review a reality. Perhaps this will just be a fad — but perhaps not. (For what it is worth, if done well, retrospective review is an idea whose time should come.)

The D.C. Circuit’s cases this week also have a “middle chapters” flavor to them.

In Owner-Operator Independent Drivers Associations v. DOT, Judge Tatel (joined by Judges Griffith and Srinivasan) addressed Spokeo v. Robins — an opinion whose true significance is still being worked out. The D.C. Circuit determined that there is not a “concrete injury” to provide “Article III standing . . . [for] a statutory violation” when inaccurate information about a driver is contained in a DOT “database containing driver-safety information” — that is, unless that inaccurate information is “disseminated.” The Court reasoned that “a statutory violation is sufficient to confer standing only if the specific procedural violations alleged . . . actually harm, or present a material risk of harm to, [concrete] interests.” The Court did find, however, that there is standing for two drivers because the “dissemination of that [inaccurate] information to a potential employer is” a concrete injury.

In Stand Up For California! v. DOI, Judge Tatel (this time joined by Chief Judge Garland and Judge Edwards) affirmed a grant of summary judgment in favor of the Department of the Interior. After a lengthy administrative process, the Department took a piece of land into trust for the North Fork Rancheria of Mono Indians so that they could build and operate a casino. Stand Up For California! challenged these actions, arguing, among other things, that “the North Fork is not an Indian tribe for which the Department has … authority to acquire land.” The D.C. Circuit disagreed. The analysis in the opinion is complicated. But even a cursory look at the number of lawyers involved suggests that this is an important issue; indeed, Seth Waxman represented North Fork Rancheria of Mono Indians. Perhaps we have not heard the last of this case.

Finally, in Feldman v. FDIC, Judge Rogers (joined by Judges Tatel and Edwards) reversed dismissal of a bankruptcy trustee’s case. The facts are complicated, but here is the gist: The Court held that dismissal was inappropriate because there were factual issues as to whether the trustee was entitled to notice from the FDIC and whether the trustee had “constructive notice.” If I had to guess, I would say that this case will not have lasting significance; it seems fact bound. But we will have to see.

And that is true for many things. When it comes to administrative law, we are watching change happen. But we are still in the middle chapters.

* I confess. That is a pretentious question. Here is an even more pretentious answer: “Do you mean in French?” I confess I have not!


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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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