If you are a regular reader (“Hi, Mom!”*), you might think that D.C. Circuit Review — Reviewed does too much cheerleading for the D.C. Circuit. After all, although I make exceptions, I generally try not to offer my view about whether the Court’s opinions are right or wrong. Plus I try — hopefully successfully– not to take cheap shots.

This week, however, I hope to dispel any notion that D.C. Circuit Review — Reviewed sees the D.C. Circuit through rose-colored glasses. Hence, I will focus on cases in which the Supreme Court unanimously reversed the D.C. Circuit. To be sure, unanimity itself does not necessarily prove that the Supreme Court is right (sometimes the unanimous Supreme Court botches it). But reversal, especially when it is unanimous, suggests error.

The D.C. Circuit does pretty well in the Supreme Court. But not always. This week, the Supreme Court unanimously reversed the D.C. Circuit — with some pretty sharp language.

The case is District of Columbia v. Wesby. We have confronted Wesby before. About two years ago, the D.C. Circuit denied rehearing en banc over the dissent of Judge Kavanaugh (joined by Judges Henderson, Brown, and Griffith). The 2014 panel decision had prompted a dissent from Judge Brown.

Here is how Justice Thomas recounts the story:

Around 1 a.m. on March 16, 2008, the District’s Metropolitan Police Department received a complaint about loud music and illegal activities at a house in Northeast D.C. The caller, a former neighborhood commissioner, told police that the house had been vacant for several months. When officers arrived at the scene, several neighbors confirmed that the house should have been empty. The officers approached the house and, consistent with the complaint, heard loud music playing inside.

After the officers knocked on the front door, they saw a man look out the window and then run upstairs. One of the partygoers opened the door, and the officers entered. They immediately observed that the inside of the house “ ‘was in disarray’ ” and looked like “ ‘a vacant property.’ ” 841 F.Supp.2d 20, 31 (D.D.C.2012) (quoting Defs. Exh. A). The officers smelled marijuana and saw beer bottles and cups of liquor on the floor. In fact, the floor was so dirty that one of the partygoers refused to sit on it while being questioned. Although the house had working electricity and plumbing, it had no furniture downstairs other than a few padded metal chairs. The only other signs of habitation were blinds on the windows, food in the refrigerator, and toiletries in the bathroom.

In the living room, the officers found a makeshift strip club. Several women were wearing only bras and thongs, with cash tucked into their garter belts. The women were giving lap dances while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol. After seeing the uniformed officers, many partygoers scattered into other parts of the house.

The officers found more debauchery upstairs. A naked woman and several men were in the bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit candles and multiple open condom wrappers. A used condom was on the windowsill. The officers found one partygoer hiding in an upstairs closet, and another who had shut himself in the bathroom and refused to come out.

The officers found a total of 21 people in the house. After interviewing all 21, the officers did not get a clear or consistent story. Many partygoers said they were there for a bachelor party, but no one could identify the bachelor. Each of the partygoers claimed that someone had invited them to the house, but no one could say who. Two of the women working the party said that a woman named “Peaches” or “Tasty” was renting the house and had given them permission to be there. One of the women explained that the previous owner had recently passed away, and Peaches had just started renting the house from the grandson who inherited it. But the house had no boxes or moving supplies. She did not know Peaches’ real name. And Peaches was not there.

An officer asked the woman to call Peaches on her phone so he could talk to her. Peaches answered and explained that she had just left the party to go to the store. When the officer asked her to return, Peaches refused because she was afraid of being arrested. The sergeant supervising the investigation also spoke with Peaches. At first, Peaches claimed to be renting the house from the owner, who was fixing it up for her. She also said that she had given the attendees permission to have the party. When the sergeant again asked her who had given her permission to use the house, Peaches became evasive and hung up. The sergeant called her back, and she began yelling and insisting that she had permission before hanging up a second time. The officers eventually got Peaches on the phone again, and she admitted that she did not have permission to use the house.

The officers then contacted the owner. He told them that he had been trying to negotiate a lease with Peaches, but they had not reached an agreement. He confirmed that he had not given Peaches (or anyone else) permission to be in the house—let alone permission to use it for a bachelor party. At that point, the officers arrested the 21 partygoers for unlawful entry. See D.C. Code § 22–3302 (2008). The police transported the partygoers to the police station, where the lieutenant decided to charge them with disorderly conduct. See § 22–1321. The partygoers were released, and the charges were eventually dropped.

The D.C. Circuit, in an opinion by Judge Pillard (joined by Judge Edwards), held that this mass arrest was unconstitutional because there was no probable cause and, moreover, that the right not be arrested was so clearly established that qualified immunity did not protect the officers. The Supreme Court didn’t buy it.

As a constitutional matter, “the panel majority failed to follow two basic and well-established principles of law. First, the panel majority viewed each fact ‘in isolation, rather than as a factor in the totality of the circumstances.’ …. [And s]econd, the panel majority mistakenly believed that it could dismiss outright any circumstances that were ‘susceptible of innocent explanation.'” In short: “The circumstances here certainly suggested criminal activity. As explained, the officers found a group of people who claimed to be having a bachelor party with no bachelor, in a near-empty house, with strippers in the living room and sexual activity in the bedroom, and who fled at the first sign of police. The panel majority identified innocent explanations for most of these circumstances in isolation, but again, this kind of divide-and-conquer approach is improper.”

The Court also addressed the D.C. Circuit’s denial of qualified immunity: “Even assuming the officers lacked actual probable cause to arrest the partygoers, the officers are entitled to qualified immunity because they ‘reasonably but mistakenly conclude[d] that probable cause [wa]s present.’ Tellingly, neither the panel majority nor the partygoers have identified a single precedent—much less a controlling case or robust consensus of cases—finding a Fourth Amendment violation ‘under similar circumstances.’ And it should go without saying that this is not an ‘obvious case’ where ‘a body of relevant case law’ is not needed. The officers were thus entitled to qualified immunity. The panel majority did not follow this straightforward analysis.” (For what it is worth, deciding the immunity question too is a bit unusual; Justice Thomas stated that it was necessary to do so because reversal on the issue of probable cause would not be enough to resolve all claims. To the Supreme Court’s credit, it gave a reason for how it exercised its discretion — an example lower courts should follow.)

(Justice Sotomayor concurred in the judgment to say she would have just reached the immunity question. And Justice Ginsburg concurred in the judgment to offer some interesting Fourth Amendment thoughts.)

This opinion got me thinking: How often does the Supreme Court unanimously reverse the D.C. Circuit? Not often, it turns out, but it happens. The good folks in the BYU Law Library counted 75 examples since 1945 — but only 10 since 1990. Here is the complete list:

I also wondered about some of the language that the Supreme Court has used to describe the D.C. Circuit. After reviewing many of these cases (I admit, not all), I think the harshest rhetoric — at least in a unanimous opinion — is found in Vermont Yankee Nuclear Power Corp. v. NRDC:

• “[W]e granted certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress”.

• “The exploration of the record and the statement regarding its insufficiency might initially lead one to conclude that the court was only examining the sufficiency of the evidence, but the remaining portions of the opinion dispel any doubt that this was certainly not the sole or even the principal basis of the decision. Accordingly, we feel compelled to address the opinion on its own terms, and we conclude that it was wrong.”
  
• “[T]he basic reason for this decision was the Court of Appeals’ serious departure from the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.”

• “While the court’s rationale is not entirely unappealing as an abstract proposition, as applied to this case we think it basically misconceives not only the scope of the agency’s statutory responsibility, but also the nature of the administrative process, the thrust of the agency’s decision, and the type of issues the intervenors were trying to raise.”
  
• “We also think the court’s criticism of the Commission’s ‘threshold test’ displays a lack of understanding of the historical setting within which the agency action took place and of the nature of the test itself.”

• “We have also made it clear that the role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review. … We think the Court of Appeals has forgotten that injunction here and accordingly its judgment in this respect must also be reversed.”

• “All this leads us to make one further observation of some relevance to this case. To say that the Court of Appeals’ final reason for remanding is insubstantial at best is a gross understatement.”

That’s harsh. (For what it is worth, although the Supreme Court was right to take the text of the APA seriously, the Justices would have done well to have heeded their own advice in another 1970s opinion!)

***

The D.C. Circuit decided three cases this week, none of which is likely to prompt unanimous reversal.

The first two cases appear (relatively) straightforward as a legal matter. In PJM Power Providers Group v. FERC, Chief Judge Garland (joined by Judges Wilkins and Edwards) rejected “purely factual” challenges of the Commission’s determination that tariff revisions were “unsupported by substantial evidence.” And in Casey v. McDonald’s Corporation, Judge Kavanaugh (joined by Judges Rogers and Wilkins) opened his opinion this way: “This case arose out of a drunken brawl, a not-uncommon occurrence late at night outside of D.C. bars. But this fight had an uncommon and tragic ending: someone died.” The parents of the decedent claimed that bars were negligent by “serv[ing] alcoholic beverages to an intoxicated person” in violation of D.C. law and that McDonald’s (where the fight began) was also responsible. The Court agreed that D.C. law would recognize a cause of action against the bars but that “the claims against McDonald’s are unavailing as a matter of law.” (For what it is worth, the McDonald’s at issue is on the same block as the Administrative Conference of the United States; small world.)

In Ameren Services Company v. FERC, Judge Silberman (joined by Judge Tatel) vacated FERC “orders empowering incoming generators within the Midcontinent Independent System Operator (MISO) region to elect to self-fund . . . new construction, or to seek financing from third parties, regardless of whether the current grid owners wish to fund the construction themselves.” In rejecting the first reason given by FERC — that allowing transmission owners to require “transmission owner funding” would “provide . . . them with the power to discriminate amongst generators who wish to connect to the grid” — the Court stated that “FERC is not obliged to show actual evidence to support a determination of potential discrimination, but in the absence of evidence, the Commission must at least rest on economic theory and logic.” The Court reasoned that the concern for discrimination among generation providers harkens back to the “bad old days” when transmission owners were vertically integrated monopolies, but the world has moved on. The Court rejected FERC’s second reason — “that allowing transmission owners to insist on transmission owner funding would be ‘unjust and unreasonable’ under the Federal Power Act because it imposed increased costs without any corresponding increase in service” — because, inter alia, FERC’s orders could cause the transmission owners “to act, at least in part, as a nonprofit business.” After all, they would have to operate the system upgrades, along with attending costs and associated enhanced risk, without earning a return on these system upgrades. Judge Rogers dissented: “[I]n a technical area like electricity rate design, courts must afford great deference to the Commission in its rate decisions.”

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* Just kidding. My mother loves her children, but there is no way she reads D.C. Circuit Review — Reviewed. And truth be told, it’s hard to fault her.

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