Over at SCOTUSblog last Friday, I did a quick opinion analysis of the Supreme Court’s  decision in PDR Network v. Carlton & Harris Chiropractic. Here’s a snippet from that post:

Yesterday the Supreme Court handed down its decision in PDR Network v. Carlton & Harris Chiropractic. The court unanimously agreed to vacate and remand the case to the U.S. Court of Appeals for the 4th Circuit. Such unanimity, however, is illusory. The separate opinions in the case underscore deep divisions among the justices as to fundamental principles of administrative law.

The question presented in PDR Network was whether the Hobbs Act strips district courts of jurisdiction to reconsider the validity of an agency’s legal interpretation of certain statutes. The Hobbs Act grants circuit courts of appeals exclusive jurisdiction to determine the validity of certain agency orders and requires an aggrieved party to seek judicial review within 60 days of such a final order’s entry.

…

The Supreme Court’s decision to dodge the question presented and remand is curious. After all, Breyer justifies the remand because the 4th Circuit “has not yet addressed the preliminary issues we have described.” Yet he does not address Carlton & Harris Chiropractic’s argument that both issues were forfeited due to PDR Network’s failure to raise them before the 4th Circuit. As noted in my argument analysis, the federal government suggested at argument that perhaps the proper course would be to dismiss the case as improvidently granted — a “DIG,” in Supreme Court parlance. That would seem like the ordinary course in a situation like this. So what gives? This law professor wonders whether a remand, as opposed to a DIG, was the price for the chief justice’s decisive vote.

Such speculation aside, it will likely only be a matter of time before the court confronts this question again. Perhaps then we’ll find out if there is a fifth vote for Kavanaugh’s treatment of the Hobbs Act as ordinary administrative law.

The full post is here.