D.C. Circuit Review – Reviewed: Vacation!

by Aaron Nielson — Friday, Sept. 13, 2019@Aaron_L_Nielson

This will be a quick post. Last week’s theme, you see, was vacation — in the sense of vacatur. This week’s theme is vacation — in the sense of enjoyable travel. Why? Because today I found myself in Washington, D.C. for two separate D.C. Circuit-related investitures.

To begin, Chris Landau* took the oath to serve as the nation’s ambassador to Mexico. This event was related to the D.C. Circuit for at least four reasons. First, two D.C. Circuit judges were in attendance. Second, Landau clerked on the D.C. Circuit. Third, as a lawyer, he won federal judges a pay raise, including D.C. Circuit judges. And fourth, Justice Clarence Thomas — a former D.C. Circuit judge — administered the oath of office and while speaking revealed an interesting fact: Landau was the first law clerk he ever hired.

Next, Judge Neomi Rao also had her investiture today — with her oath also administered by Justice Thomas. As regular readers know, I’m a fan of Judge Rao, who was my boss many years ago when I was an intern. It was a great event. Chief Judge Garland is an excellent master of ceremonies and it was reaffirming to see the entire Court in such a pleasant, welcoming mood.

In short, I had a great vacation.

The Court decided three opinions this week. In honor of her investiture, let’s start with the one penned by Judge Rao. In Carlson v. Postal Regulatory Commission, the D.C. Circuit (Rao, joined by Judges Millett and Katsas) ruled in favor of a pro se petitioner who claimed that the Post Office didn’t follow the Administrative Procedure Act when it raised the price of stamps. It turns out that he was correct. Here is how Rao began her opinion for the Court:

On the subject of vacation — in the vacatur sense — the Court also included this discussion:

And this is how Judge Rao ended her opinion:

Nice to see Judge Rao both in person and in print on the same day.

The most significant case this week is probably Wisconsin v. EPA. Here is how the panel began its opinion:

There is a lot going on in this one. The Court rejected almost all the challenges, but did accept one brought by certain environmental challengers: EPA did not require compliance soon enough. The Court then addressed the subject of vacatur:

Finally, let’s end with United States v. Park. Here is now Judge Pillard, joined by Chief Judge Garland, opened her opinion:

The Court rejected the challenge based on the federal treaty power and the Foreign Commerce Clause. Judge Griffith — who of late has thought a fair bit about the Foreign Commerce Clause — wrote a separate opinion:

And with that, I need to pack my bags to prepare for an early morning flight home. Vacation is over.

* Chris Landau is one of the best lawyers in the world. He also was one of my mentors at Kirkland & Ellis. When I teach Civil Procedure, I make it a point to teach my students something I call the “Landau Rule”: always assume that a judge will read in full every case cited in your brief. So don’t just focus on snippets of good language in an opinion; also pay close attention to the case’s ultimate judgment. It’s a simple rule, but it is an important one.

 

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About Aaron Nielson

Professor Nielson is a 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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