D.C. Circuit Review – Reviewed: Trivia Day

by Aaron Nielson — Friday, Apr. 6, 2018@Aaron_L_Nielson

There are many talented people in this world. Some people can sing; others can dance; others still can pole vault, run regressions, mimic bird calls, entertain large crowds with wit and charm, or even switch hit.

Alas, I can do none of those things. Instead, I have only two real skills: I can (1) sleep on planes and (2) sit in place for a very long time. These skills are not nothing. Indeed, I wouldn’t be who I am without them. When I was a full-time lawyer, for instance, I could sit down and start writing a brief and not stop until it was done, even if took all night. Then I’d rush to the airport for my early morning flight and crash on the plane, falling asleep before we took off and waking up refreshed and ready to start again upon landing. Not bad.

I used to think I was good at trivia too. Unfortunately, in truth, I don’t know all that much. But at least I can guess pretty well. For instance, assume the question is this: “What Canadian province was home to the bear cub that inspired Winnie the Pooh?” Some people, believe it or not, actually know the answer to that sort of question; they read a lot and can recall what they learn. Not me. But I can make an educated guess. It has to be a province that has bears, which means the small, densely populated ones are probably out. And “Winnie the Pooh” sounds pretty English, so probably not Quebec. I might also try to reverse engineer the question; presumably “Winnie” or “Pooh” is a clue. Ahh, might “Winnie” refer to Winnipeg? And with that, I’d guess Manitoba, assuming I remember that Winnipeg is in Manitoba. To be sure, in the real world, I’d probably botch this question — I’m not sure I’d think “Winnipeg.” But I might. And sure enough, sometimes such guess prove right.

This week, however, I was reminded that even educated guesses are just that — guesses. In particular, I was invited to join Cate Stetson — a top notch appellate lawyer who does, in fact, know things — for a live recording of the Short Circuit podcast. It is presented by the Institute for Justice and is hosted by Sheldon Gilbert. Sheldon thought it would be fun to do an episode about the D.C. Circuit, and in the middle of the interview, he asked a number of trivia questions.* And I flubbed almost all of them! Here is the list; how would you do?

Q: Which two judges on the DC Circuit share the birth date of Abraham Lincoln and Charles Darwin?

Q: Which judge is known for baking the best cookies in the courthouse?

Q: Which judge brings his/her dog to chambers with great frequency?

Q: Which judge is an avid genealogist?

Q: Which judge played high school basketball on the same team as Danny Manning?

Q: Which judge was a neighbor of and worked as a congressional intern for liberal Democratic congressman and presidential candidate Morris Udall?

Q: Which judge was present at the speech during the 1960 presidential campaign event at which JFK announced his intention to create the Peace Corps?

Q: Which judge has a large photo of Robert Bork in the foyer to his chambers?

Q: Which judge can be seen frequently in the owners’ booth at Redskins’ games?

Q. In response to a comment from government counsel that his question might call into doubt the legal underpinnings of the modern administrative state, which DC Circuit judge replied, “We can do only so much in one day.”

Q: After argument in a case involving street protests directed at the Bush 43 Administration, one member of the panel asked the others if they had ever participated in a protest demonstration. Which judge answered, “No, but I have been the target of many”?

If you want to learn the answers, listen to the podcast — here is the link. Hopefully you will do better than I did (it would be hard to do worse).

This game of trivia came to mind as I was reading this week’s cases. For instance, we have not one but two cases between the U.S. Postal Service and the Postal Regulatory Commission. That prompts a trivia question: Which D.C. Circuit judge authored a separate opinion in 2009 discussing “the constitutional oddity of a case pitting two agencies in the Executive Branch against one another?” Here is a hint. The separate opinion contains a discussion of Humphrey’s Executor and includes this sentence: “Independent agencies are those agencies whose heads cannot be removed by the President except for cause and that therefore typically operate with some (undefined) degree of substantive autonomy from the President in a kind of extra-constitutional Fourth Branch.” Here’s another hint: The judge’s last name rhymes with Zavanaugh.

In this week’s first U.S. Postal Service v. Postal Regulatory Commission case, Judge Williams (joined by Judges Pillard and Edwards) included this interesting paragraph:

We now find that the Commission’s new analysis adds no discernible clarity to the reasoning it supplied on the last round and that it rests on an unreasonable interpretation of “changes in rates” that “goes beyond the meaning that the statute can bear.” MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994). “[U]nder the familiar standard of Chevron, … a ‘reasonable agency interpretation prevails’”; “[o]f course, ‘if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable.’” Loan Syndications & Trading Ass’n v. SEC, 882 F.3d 220, 222 (D.C. Cir. 2018) (quoting Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 n.4 (2009)). “Even under Chevron, after all, agencies only ‘possess whatever degree of discretion [an] ambiguity allows.’” Id. at 224 (quoting City of Arlington v. FCC, 569 U.S. 290, 307 (2013)). We grant the petition and vacate the orders.

That prompts another trivia question. Which D.C. Circuit judge authored a concurrence last year criticizing MCI v. AT&T? Here’s the criticism:

Unfortunately, the Supreme Court for some time after Chevron contributed to the step one winner-take-all narrative by neglecting to rely on step two even when it was really called for. Take for example MCI Telecommunications Corp. v. AT&T Co., 512 U.S. 218 (1994), in which Justice Scalia — perhaps the foremost expositor of Chevron — used statutory structure and context, much like Judge Edwards does in our case, to demonstrate that the FCC’s reliance on the word ‘modify’ was unacceptable. But he never conceded that the word ‘modify’ was ambiguous, which it was.

Here is a hint: This judge authored (more or less, the procedural history is a bit convoluted) the D.C. Circuit’s decision that the Supreme Court reviewed in MCI v. AT&T. Here is another hint: He was a close friend of Justice Scalia. The answer? Judge Silberman.

In the second U.S. Postal Service v. Postal Regulatory Commission case, Judge Pillard (joined by Judges Edwards and Williams) held that “the Commission lacks statutory authority to subject the wholesale discontinuation of [Return Receipt for Merchandise] service to the rate cap applicable to rate increases.” The analysis is interesting but technical — e.g., “[t]he text of the Act reflects the distinction Congress made. The object of Section 3622 is explicit: It applies only to changes in ‘rates,’ which the Act defines as ‘fees for postal services.’ … The distinction between ‘rates’ and ‘postal services’ is central to the text and regulatory logic of the Act.” Here is a (fun) sample:

Consider an illustrative analogy: Were a restaurant to eliminate French fries from the list of side orders available on its dinner menu but still serve them as part of a “steak frites” entrée, we would not ordinarily describe the restaurant as having raised its price for an order of French fries but, more naturally, that it discontinued that option. Needless to say, not everyone who used to order fries could fairly be expected to switch to the steak frites entrée. Likewise, the availability of postcard confirmation through Certified Mail does not mean the alternative to RRM service is Certified Mail with postcard Return Receipt. The two services share a common feature, but that feature does not make Certified Mail with Return Receipt the higher priced “alternate” to RRM service.

This decision also prompts a trivia question. Which D.C. Circuit judge recently said “habeas cases ‘beat[] rate regulation cases any day'”? Here is a hint: This year’s NCAA basketball season was not kind to him. Here is another hint: I recently learned that he “was a neighbor of and worked as a congressional intern for liberal Democratic congressman and presidential candidate Morris Udall.”

Finally, the Court (again per Judge Pillard, this time joined by Chief Judge Garland and Judge Wilkins) decided AT&T, Inc. v. FCC. Here is how this relatively lengthy opinion begins:

The Federal Communications Commission has, since the agency’s inception, been charged to ensure that everyone in the United States has access to critical telecommunications services. This mandate is effected through a system of federal subsidies to certain designated carriers that are required to offer essential services to underserved consumers. Recognizing the changing technological landscape, the Commission is currently in the process of expanding those services that must be universally accessible beyond landline telephone service to include broadband and cellular service. As the transition takes place, the agency has retained some preexisting obligations of a subset of landline-only providers to ensure that underserved populations in a small number of hard-to-reach areas do not lose access to basic telecommunications services during the transition, before the modernized program is fully in effect—July 24, 2018 in most areas. Telecommunications carriers with such legacy obligations bring these petitions challenging the FCC’s decision to hold their obligations in place during this interim period.

Using a healthy dose of deference, the panel upheld the FCC’s interim decision: “We owe particular deference to interim regulatory programs involving some exigency, like the one at issue here. That added deference reflects the reality that, during a transition period, an agency must make ‘predictive judgments’ and ‘certainty is impossible.'” And “the agency’s reading ‘must be given controlling weight unless it is plainly erroneous or inconsistent.'”

Here’s the last trivia question for the week: How many D.C. Circuit opinions are captioned AT&T v. FCC? Is it more or less than ten? Truth be told, I have no idea — and if I guess, I’ll surely be wrong.

 

* These questions were fed to him by an anonymous D.C. Circuit judge.

 

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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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