The U.S. Supreme Court reminded the world this week that while the D.C. Circuit may be the nation’s “second most important court,” the Supreme Court remains the first. In particular, the Supreme Court decided to stay the EPA’s Power Plant Rule, even though a motions panel of the D.C. Circuit (Judges Henderson, Rogers, and Srinivasan) had already rejected such a stay. Rather than freeze the regulation’s effect pending review, the motions panel opted instead to expedite briefing and ordered further that it would decide the merits rather than sending the matter to a different panel. The Supreme Court, however, stepped in and itself stayed the rule pending the D.C. Circuit’s decision and any certiorari petition.

After seeing the Supreme Court in action, the D.C. Circuit sure does look like an “inferior” court—in every sense of the world.

But there is more to the story. This week, my mind turned to one of the Constitution’s great ironies: Sometimes “inferior” courts have more power than the Supreme Court. Indeed, because of its very inferiority, the Constitution allows the D.C. Circuit to exercise certain powers that the ‘superior’ Supreme Court cannot. What am I talking about? Here’s a hint: It’s time to reread Marbury v. Madison.

Article III of the Constitution gives the Supreme Court original jurisdiction over certain cases and appellate jurisdiction (“both as to law and fact, with such exceptions, and under such regulations as the Congress shall make”) over others. Marbury is famous for solidifying constitutional review, but its specific holding is that Congress cannot give the Supreme Court original jurisdiction over a matter that properly falls within the Court’s appellate jurisdiction. In Marbury, after all, the Supreme Court was asked to issue a writ of mandamus—an order telling the Executive Branch what to do. The Court held that the Court lacked the original power to issue that writ under the Constitution and further that Congress could not give it that power. The upshot of Marbury then is that unlike other courts, the Supreme Court may perform acts that fall within its “appellate jurisdiction” only after another “court,” such as an “inferior” federal court, passes on the issue.

In this way, Article III—as interpreted by Marbury—establishes that sometimes the Supreme Court is inferior to the inferior courts.

The reverberations of Marbury are still felt today. Marbury, for instance, at least suggests that the modern Supreme Court, despite all of its discretionary powers, cannot stay a regulation unless another court has already had a go at it. Nor, I would think, could the Supreme Court grant cert before judgment when a regulation is being challenged in the first instance in the D.C. Circuit. Indeed, the indispensable Supreme Court Practice (aka “Stern & Gressman”) puts it this way: “Care should be taken in such cases to ensure that any action taken by the Court constitutes review of judicial action (and thus an exercise of appellate jurisdiction), rather than direct review of executive action (and thus a forbidden exercise of original jurisdiction).” (If you are interested in this question, see also Section 2.4 of that book.)

Even 200 years later, Chief Justice John Marshall still has something to say about how all three branches of government go about their business. 

Marbury also matters this week in the D.C. Circuit in another respect. The most interesting “admin law” opinion this week is surely American Hospital Association v. Burwell, which, like Marbury, involves mandamus against the Executive Branch. In this case, an association of hospitals sought mandamus against Sylvia Burwell in her capacity as the Secretary of Health and Human Services. It seems that when hospitals perform Medicare-eligible services, they submit claims for reimbursement, which, if denied, are eligible for an administrative appeal process. All levels of that process are subject to deadlines by which the agency is to act. In 2010, however, the Secretary implemented the Medicare Recovery Audit Program, which has allowed the government to recover “billions of dollars” in improperly paid claims but has also drastically increased the number of appeals. This has resulted in virtually all appeals being delayed for periods much longer than the statutory deadlines. Judge Tatel, joined by Judges Kavanaugh and Srinivasan, concluded that mandamus could be appropriate in such a case and remanded the matter back to the district court to consider it. Speaking as the voice of a co-equal branch of government, Judge Tatel specifically warned all involved that mandamus might be necessary if the agency and Congress fail “to make meaningful progress” by “the close of the next full appropriations cycle.”

Although it does not involve mandamus, Judicial Watch, Inc. v. Department of Justice is also interesting—especially for its colorful facts and for what it says about the judiciary’s role in the nation’s political fights (again, with shades of Marbury). The House Committee on Oversight and Government Reform subpoenaed various DOJ records regarding the “fast and furious” gun sting. The DOJ refused to produce those records to Congress, citing executive privilege. This led to litigation and eventually mediation between the two branches of government. Judicial Watch, however, filed a FOIA claim, seeking the settlement documents. The district court in this case (i.e., the FOIA one) granted DOJ’s motion for summary judgment because the district court in the other case (i.e., the executive privilege one) had sealed the records, at least according to the district court in this case (again, the FOIA one). Judge Ginsburg, in an opinion joined by Judges Pillard and Wilkins, remanded so the parties can seek clarification from the judge in the first case (the executive privilege one) as to whether the records are actually sealed. I suspect we have not heard the last of this litigation.

The two other new cases do not involve “admin law,” though they both illustrate the role and power of inferior courts. In Forras v. Rauf, the D.C. Circuit (Judge Millett, joined by Judges Pillard and Williams) concluded that there was no personal jurisdiction over a defamation action concerning “an Islamic community center and mosque in lower Manhattan,” which one of the appellees sought to build “a few blocks from the site of the World Trade Center attacks of September 11, 2001.” (Along the way, Judge Millett cites Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).) And in Wheeler v. Georgetown University Hospital, Judge Wilkins, writing for Judges Henderson and Pillard, concluded that a jury should decide whether the plaintiff was discriminated against on account of her race.*

So there you have it: there’s always something more to learn about Marbury.

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* The D.C. Circuit also denied en banc review in Wesby v. District of Columbia, a qualified immunity case that may be destined for the Supreme Court, at least if Judge Kavanaugh has anything to say about it. Two D.C. police officers arrested a group of people holding a party in a vacant house; the district court and a panel of the circuit court found that they did not have probable cause for the arrests and were not entitled to qualified immunity. This week, Judge Pillard, joined by Judge Edwards, wrote a concurrence defending the decision not to rehear the case en banc. Judge Kavanaugh, however, joined by Judges Henderson, Brown, and Griffith, wrote a dissent. The dissent began by noting that the Supreme Court has reversed 11 qualified immunity cases in the last 5 years, often summarily. 

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