Warning! This post may only be of interest to me. But there is a mystery this week in the D.C. Circuit: What happened in Coburn v. Murphy?

In Coburn, the D.C. Circuit included an intriguing footnote: “Judge Henderson was drawn to replace Chief Judge Garland, who originally heard argument in this case but did not participate in the opinion. Judge Henderson has read the briefs, reviewed the record, and listened to the recording of the oral argument.” This breaks from prior practice. To be sure, it is not unusual for Garland to sit a case out—he’s been doing so since his nomination. It is unusual, however, to draft a replacement for him rather than let the remaining two judges just decide the case. In fact, the usual practice is to use this footnote: “Chief Judge Garland was a member of the panel at the time the case was argued but did not participate in this opinion.” The Court did use a Coburn-like footnote in Human v. Czech Republic, where Judge Tatel’s number was called, but that was because the two original panel members disagreed. In Coburn, however, there is no dissent. What’s going on?

Let’s start with some background. This week’s Coburn decision marks the second time the case has come before the D.C. Circuit. The dispute concerns Trent Coburn, who served nearly two decades in the Army. Unfortunately, he tested positive for marijuana* use. That was enough to boot him from the military. Yet before his “separation from the Army,” Coburn contacted an Army doctor “seeking an evaluation of his ongoing back pain” and a determination “whether he was suitable for a medical discharge.” While those medical evaluations were ongoing, the Army could not discharge him. Ultimately, his medical examination came to an end, and on that “same day, Coburn received his Army discharge papers.” Coburn was unhappy about this and sued. In Coburn I, the panel (Judge Edwards, joined by Judges Brown and Griffith) concluded that it could not say whether the Army decision was sound because the government’s explanation was too muddled. On remand, the Army reached the same conclusion: Discharge. And now back before the D.C. Circuit, Judge Brown, joined by Judges Pillard and Henderson (sitting in for Chief Judge Garland) affirmed: “While [the Army’s] reading may not be the only plausible way to interpret the relevant Army regulations, it is certainly one plausible interpretation, and nothing in the regulations forecloses it.”

That’s the opinion (more or less), but it does not explain why Judge Henderson was brought in. There are many possibilities. It could be that Judge Pillard disagreed with Judge Brown’s opinion, thus necessitating a third judge, but once Henderson sided with Brown, Pillard joined too. After all, not every circuit judge dissents in every case in which she disagrees with the majority. Or it could be that Brown and Pillard disagreed, but Henderson came along and discovered a new path that everyone could accept. Or perhaps there is another explanation altogether. It is a mystery. Coburn, however, says something about how judges view oral argument. Something happened after oral argument in this case that necessitated Henderson’s participation, yet whatever it was, the panel did not feel that a new oral argument was necessary.

Moving on, this was another busy week at the D.C. Circuit—including Coburn, there are nine published opinions (though two are consolidated). Two opinions involve criminal law: United States v. Williams (complex per curiam opinion by Judges Rogers, Pillard, and Wilkins, affirming in large part but reversing as to one defendant because of the lay/expert testimony distinction) and United States v. Burnett (per Judge Kavanaugh, joined by Judges Srinivasan and Pillard, affirming in large part but vacating the sentence because of a factual error). And one involves collecting a debt: United States v. TDC Management Corp. (per Judge Ginsburg, joined by Judges Srinivasan and Wilkins, reversing and remanding for the district court to “evaluate the Government’s alternative argument that it may garnish WDG’s assets by piercing the corporate veil between WDG and Mont”). Because this blog is focused on administrative law, I won’t dwell on these opinions.

Here are the admin law cases:

• Competitive Enterprise Inst. v. Office of Science and Technology Policy: For obvious reasons, this is the highest profile case of the week. Here, the Court held that agencies cannot shield records from FOIA disclosure by using private email accounts. Judge Sentelle, joined by Judge Edwards, determined that because an agency always acts through its officials, “[i]f one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.” Judge Srinivasan concurred in the judgment: “I would conclude here only that a current official’s mere possession of assumed agency records in a (physical or virtual) location beyond the agency’s ordinary domain, in and of itself, does not mean that the agency lacks the control necessary for a withholding.”
  
• Public Employees for Environmental Responsibility v. Hopper: This is an important NEPA case. The Cape Wind Energy Project hopes “to generate electricity from windmills off the coast of Massachusetts.” Yet “[o]ffshore energy providers like Cape Wind must comply with a slew of federal statutes designed to protect the environment, promote public safety, and preserve historic and archeological resources on the outer continental shelf.” Here, various environment groups successfully challenged approval of the project under NEPA. They argued that the agency’s impact statement “does not adequately assess the seafloor and subsurface hazards” and “relies on inadequate geological surveys.” “In support, plaintiffs refer to a series of internal Bureau emails describing ‘the dearth of geophysical data over the entire area’ of the proposed wind farm.” Judge Randolph, joined by Judges Millett and Wilkins, ruled against the agency because it must consider all predictable consequences of its decision. As to remedy, the panel held that “we will vacate the impact statement and require the Bureau to supplement it with adequate geological surveys before Cape Wind may begin construction. We will not, however, vacate Cape Wind’s lease or other regulatory approvals based on this NEPA violation.” (There is a lot more going on this case, including analysis of other statutes. For instance, the panel also found a procedural violation of the Endangered Species Act because the agency ignored evidence. If you follow environmental law, check this one out.)
  
• Rosebud Mining Co. & Parkwood Res., Inc. v. MSHA & Canyon Fuel Co, LLC, et al. v. MSHA: Judge Henderson, joined by Judges Rogers and Kavanaugh, denied two petitions challenging modifications of mine safety standards. In particular, coal companies challenged the requirements that they cease coal production when surveying in specific areas of a mine, not survey when float coal dust is “in suspension,” and switch to other survey equipment if it becomes available. The panel upheld the orders because the “Assistant Secretary weighted the relevant factors . . . and ‘articulated a rational connection between the facts found and the choice made.’”
  
• The Tennis Channel, Inc. v. FCC: This case (also on a return trip) concerns whether Comcast Cable violated federal law “by giving preferential treatment to its affiliated networks in programming tier placement.” The first time this case was before the D.C. Circuit, the Court sided against the Tennis Channel. Long story short, on remand, the FCC sided with Comcast, and Judge Rogers (joined by Judges Brown and Pillard) denied the Tennis Channel’s petition for review. This case largely turns on the meaning of the D.C. Circuit’s original opinion—did the original panel determine there was no evidence in the record, or just that the agency decision was not supported by enough evidence? Back before the agency, the FCC said it was the former, and the second panel agreed: “For the Commission to have understood Tennis I as requiring additional record analysis on remand, the Commission would have had to ignore the court’s statements that it had reviewed the administrative record and determined neither Tennis Channel nor the Commission in its Initial Order had pointed to substantial evidence to support finding . . . discrimination.” And “because the Commission correctly determined that Tennis I concluded the administrative record contained insufficient evidence to support a finding of . . . discrimination by Comcast, the Commission’s rejection of Tennis Channel’s request for further briefing was hardly a clear abuse of discretion.”

That is the D.C. Circuit this week. What mysteries will come next?

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* Or should I say “marihuana”? Federal law sometimes uses “h” rather than “j.” To be sure, the Supreme Court has determined to use “j.” But perhaps we should use “h” to remind ourselves there are limits on the Supreme Court’s power—the Justices don’t control everything! On the other hand, marihuana looks silly . . .

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