March 14, 2018 Articles

The Role of the D.C. Circuit in Administrative Law

The particular expertise of the court is an important consideration in how cases are briefed there.

By David M. Cooper

The U.S. Court of Appeals for the D.C. Circuit is unique both in composition and caseload. Unlike almost all of the other federal appeals courts, the judges on the D.C. Circuit are chosen from beyond the boundaries of the circuit itself. The D.C. Circuit’s caseload is also unlike other circuits’. Approximately two-thirds of D.C. Circuit cases involve the federal government in some civil capacity, compared with less than 25 percent in circuits nationwide. See John G. Roberts Jr., “What Makes the D.C. Circuit Different? A Historical View,” 92 Va. L. Rev. 375, 377 (2006). And most important for purposes of this article, one-third of D.C. Circuit appeals are from agency decisions, compared with less than 20 percent for appeals courts nationwide. Id. at 376–77.

The particular nature of the D.C. Circuit has important implications for how that court functions and how lawyers should litigate administrative-law cases there.

Primacy in Administrative Law
Unlike the numbered circuit courts across the country, whose jurisdiction is largely a matter of geography, the D.C. Circuit has concurrent or exclusive jurisdiction in many cases involving review of federal-agency actions. A great number of federal statutes give the D.C. Circuit jurisdiction to review the actions of a wide variety of administrative agencies. This administrative jurisdiction began in 1870, but expanded most rapidly in the 1960s and 1970s. See John M. Golden, “The Federal Circuit and the D.C. Circuit: Comparative Trials of Two Semi-Specialized Courts,” 78 Geo. Wash. L. Rev. 553, 554 (2010). Currently, the D.C. Circuit has authority to review decisions of the Federal Communications Commission (FCC), the Federal Energy Regulatory Commission (FERC), the Environmental Protection Agency (EPA), the National Labor Relations Board (NLRB), the Federal Trade Commission (FTC), and the Federal Aviation Administration (FAA), among many other agencies. See Roberts, 92 Va. L. Rev. at 389. As a result, the D.C. Circuit decides about one-fourth of all challenges to federal-agency decisions, more than any other single circuit. See Susan Low Bloch and Ruth Bader Ginsburg, “Celebrating the 200th Anniversary of the Federal Courts of the District of Columbia,” 90 Geo. L.J. 549, 575 (2001–2002).

For some agencies, this jurisdiction is exclusive, and all challenges to agency action must go to the D.C. Circuit. See, e.g., 47 U.S.C. § 402 (1994) (FCC decisions); 42 U.S.C. § 7607(b)(1) (certain EPA decisions under the Clean Air Act); 42 U.S.C. § 300j-7 (certain EPA decisions under the Safe Drinking Water Act). For other agencies, the jurisdiction is concurrent: The challenge can go either to the D.C. Circuit or to the circuit where the events at issue took place. See, e.g., 29 U.S.C. § 160(f) (concurrent jurisdiction over NLRB decisions); 29 USC § 655(f) (concurrent jurisdiction over certain Occupational Safety and Health Administration (OSHA) decisions). There is also variation in whether review of agency actions occurs first in the district court or whether it goes straight to the court of appeals. See Bloch and Ginsburg, 90 Geo. L.J. at 575 n.154.

Because of the D.C. Circuit’s status as a semi-specialized court with a particular focus on administrative law, much of the foundation of administrative-law doctrine has come from this court. To be sure, the D.C. Circuit’s docket remains varied, and it does not hold a monopoly on administrative law like the Federal Circuit essentially does for patent cases. Nonetheless, it is widely accepted that the D.C. Circuit has an enormous role in the development of administrative law, and that other circuits often follow its lead in this area of law. As Justice Ginsburg has explained, “the D.C. Circuit—more than any other court of appeals—has influenced the nature of judicial review of agency decisions.” Bloch and Ginsburg, 90 Geo. L.J. at 576. Indeed, the D.C. Circuit played a critical role in establishing basic administrative-law concepts such as Chevron deference to agency interpretation of statutes and the “hard-look doctrine,” which requires that agencies engage in “reasoned decisionmaking” to survive arbitrary-and-capricious review. See Golden, 78 Geo. Wash. L. Rev. at 567.

Effects of Expertise in Administrative Law
Administrative-law cases differ from typical civil cases in a number of respects. For one thing, the records are often extremely long and require an understanding of esoteric subjects that are not familiar to most judges. (As a former law clerk in the D.C. Circuit, I can recall that in my first case involving the FERC, the briefs seemed to be written in another language, one largely composed of acronyms.) For another thing, there is often no district-court ruling; rather, the first independent, judicial evaluation of the facts comes from the court of appeals. Thus, the cases demand either a great deal of time to evaluate and/or a basic familiarity with the subject at issue. On both scores, the D.C. Circuit has a particular advantage over other circuits. On a per-judge basis, the D.C. Circuit decides less than one quarter of the average number of cases that other circuit courts decide. See Richard J. Pierce Jr., “What Do the Studies of Judicial Review of Agency Actions Mean?”, 63 Admin. L. Rev. 77, 91 (2011). And because the D.C. Circuit deals with a large number of administrative-law cases, its judges quickly develop knowledge regarding the subjects (and acronyms) at issue in challenges to the actions of repeat-player agencies.

The D.C. Circuit’s unique jurisdictional role and expertise play a significant role in how administrative-law cases are litigated in that court. To begin with, “[e]very study that has looked at the question has found that the D.C. Circuit is less deferential to agencies than any other circuit.” Id. at 89. Specifically, the D.C. Circuit affirms agency decisions approximately 11–12 percent less often than other circuits do. Id. at 90. While there are a number of possible explanations for this discrepancy, the most obvious is that the D.C. Circuit’s familiarity with agencies makes them more skeptical of those agencies. Indeed, the D.C. Circuit affirms agencies that appear frequently before it 12 percent less than it affirms agencies that it sees more rarely. Id. at 88; see also Thomas J. Miles and Cass R. Sunstein, “The Real World of Arbitrariness Review,” 75 U. Chi. L. Rev. 761, 796–97 (2008) (finding courts that review an agency more frequently uphold the actions of that agency less frequently). Indeed, even on particular panels, opinions are often assigned to particular D.C. Circuit judges who have specialized in particular agency fields. See Edward K. Cheng, “The Myth of the Generalist Judge,” 61 Stan. L. Rev. 519, 542 (2008–2009). Another factor may simply be the extra time that the D.C. Circuit has by virtue of its smaller docket, and the fact that it takes more time to wade through a record to reverse an agency than it does to simply affirm the agency’s decision for the reasons that it provides. See Pierce, 63 Admin. L. Rev. at 92. One can view the seemingly more stringent review in the D.C. Circuit as that court being too willing to decide for itself what agencies should do. Or one can say that “D.C. Circuit judgments have increased accountability and transparency in agency decisionmaking,” and “the D.C. Circuit’s surveillance improved the quality of agency decisionmaking generally.” Bloch and Ginsburg, 90 Geo. L.J. at 575, 577.

Relationship with the Supreme Court
The Supreme Court’s review of D.C. Circuit administrative-law opinions has varied greatly over time. In 1978, future Justice Scalia remarked: “As a practical matter, the D.C. Circuit is something of a resident manager, and the Supreme Court an absentee landlord.” Antonin Scalia, “Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court,” 1978 Sup. Ct. Rev. 345, 371 (1978). In the 1980s, though, the Supreme Court issued a series of decisions reversing D.C. Circuit opinions on administrative law and made the D.C. Circuit the most reversed circuit court in the country. See Golden, 78 Geo. Wash. L. Rev. at 560. Nonetheless, even during this period, the D.C. Circuit played a critical role in framing administrative-law issues for the Supreme Court to consider and resolve. See Patricia M. Wald, “The Contribution of the D.C. Circuit to Administrative Law,” 40 Admin. L. Rev. 507, 512–14 (1988); Bloch and Ginsburg, 90 Geo. L.J. at 577.

More recently, though, the Supreme Court has taken a much smaller role in reviewing D.C. Circuit administrative-law cases. Indeed, in many of the Supreme Court’s recent cases concerning administrative law, the question presented did not concern an administrative-law question at all. Rather, the cases were presented based on a circuit split in the interpretation of a statute, and resolution of that issue just happened to implicate an issue of administrative law. For instance, in Mayo Foundation for Medical Education and Research v. United States, 131 S. Ct. 704 (2011), there was disagreement among the circuits on whether medical residents should be excluded from the definition of “students” for purposes of a Social Security tax exemption. While the Supreme Court granted certiorari to resolve this conflict, its decision also resolved an issue regarding the application of Chevron review to tax regulations. Similarly, in Gonzales v. Oregon, 546 U.S. 243 (2006), the Supreme Court granted certiorari to resolve the issue of whether the Controlled Substances Act allowed the U.S. attorney general to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the procedure. But in addressing this issue, the Court decided an important question regarding limitations on Auer deference to an agency’s interpretation of its own regulations. Of course, the Court does occasionally take administrative-law cases simply because of the administrative-law issue. For instance, this term, the Court is deciding whether Chevron deference applies in the context of an agency’s determination of its own statutory jurisdiction. See City of Arlington v. FCC, No. 11-1545 (argued Jan. 16, 2013). However, the fact that this question was allowed to remain unresolved for 25 years since Justice Scalia and Justice Brennan expressed disagreement on the issue (but the majority opinion in that case declined to address it), see Mississippi Power and Light Co. v. Mississippi, 487 U.S. 354 (1988), highlights the back seat that the Supreme Court has taken on administrative law.

Considerations in Litigating Administrative-Law Cases
Because of the unique aspects of the D.C. Circuit discussed above, there are also unique considerations in how best to litigate administrative-law cases in that court.

To begin with, unlike in most other cases, lawyers sometimes have a choice of whether to challenge an agency in a geographic circuit court or in the D.C. Circuit. In making this decision, there will be the usual considerations in deciding in which forum to bring a case: for example, which court has more favorable precedents and which court’s judges seem more amenable to the arguments. But there is an additional consideration in administrative-law cases, which is that the D.C. Circuit reverses agencies more frequently than other circuits do, particularly in cases dealing with agencies that the D.C. Circuit sees often. Moreover, in addition to the familiarity with agencies, Chief Justice Roberts has pointed out that “lawyers frequently prefer to litigate in the D.C. Circuit because there is a far more extensive body of administrative law developed there than in other circuits.” Roberts, 92 Va. L. Rev. at 389.

Moreover, the expertise of the D.C. Circuit, both in administrative law generally and the workings of certain agencies in particular, is an important consideration in how cases are briefed in that court. As to administrative law, lawyers must consider the greater amount of precedent in that court and the judges’ deep knowledge of that area of law. And, given recent trends, it is very unlikely that the Supreme Court will step in to review the D.C. Circuit’s view on any particular issue of administrative law. As to particular agencies, lawyers can sometimes assume more background knowledge than they would for other judges less familiar with, for example, telecommunications or energy regulations. In addition, the D.C. Circuit may have a bigger-picture view of how an agency action—or reversal of that action—will affect the broader scheme of regulations for a particular agency. Thus, the D.C. Circuit’s expertise may bring both deeper consideration of the legal issues at hand and broader consideration of effects in other cases, and lawyers should be prepared for that greater scrutiny in litigating before the D.C. Circuit.

Keywords: litigation, appellate practice, FCC, FERC, EPA, NLRB, FTC, FAA, OSHA, Supreme Court

David M. Cooper is an associate with Jones Day in New York, New York.


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