En Banc Review Refers to a Partial Appeal Heard by All of the Appellate Judges in That Circuit
"[P]etitions for rehearing en banc are oft filed but rarely granted." So says the Handbook of Practice and Internal Procedures of the D.C. Circuit. Yet this week's mail is all near en banc.
First, the D.C. Circuit sabbatum en banc on Monday to hear Allegheny Defense Projection v. FERC and on Tuesday to hear Commission on the Judiciary v. McGahn/House of Representatives v. Mnuchin. Audio is here and here. The Court presumably volition upshot decisions pretty soon. The rule of pollex for the Supreme Court is that it "generally takes cases to reverse." That's probably a off-white bet here too. But nosotros shall meet.
Second, the Supreme Court announced that it will largely follow the D.C. Circuit'south en-banc-past-phone-call approach to oral argument — which goes from senior to junior in terms of questioning. One difference: Chief Justice Roberts will go first while Principal Judge Srinivasan went last. Another difference: I don't think the Supreme Courtroom will permit oral argument to go on for hours. Only over again, we shall come across (or, rather, hear).
Tertiary, the Supreme Courtroom this week proposed amendments to Federal Rule of Appellate Procedure 35's en banc procedures:
This isn't the most heady change. Merely if you study delegation, the Rules process is remarkable. Past statute, the Supreme Courts has power to prefer (sure) rules:
And and so Congress has power to veto those rules. But if Congress doesn't act, the rules get into consequence.
This process may exist open to gamesmanship; the Supreme Court potentially tin can pick rules that Congress may not want but yet also can't muster the votes to decline. I don't this is such a rule though.
Finally, fourth, Matt Schettenhelm offered these fascinating (ugh) tweets:
The outset step to en banc review is often (though not ever) console disagreement. Although nosotros still accept a pocket-sized sample size,* it looks like Judges Katsas and Rao are closely following in the footsteps of the judges they replaced. Both Approximate Dark-brown and and then-Guess Kavanaugh dissented a lot. (Past contrast, Judge Garland and Approximate Griffith do non.) Respectful dissent isn't a bad thing; as I've noted before, "agreement is practiced but not at the expense of contained judgment." And as Kavanaugh'due south track tape confirms, the Supreme Court often pays close attention to those dissents. Yet, however, this is an interesting trend.
The D.C. Circuit decided three cases this week … without dissent.
In Pharmaceutical Manufacturing Enquiry Services, Inc. v. FDA: Judge Rao (joined by Judges Henderson and Wilkins) addressed the FDA's approval process for new drugs. PMRS sought approval to market place an opioid drug under a label designating it every bit having an "ADR" — brusque for "Abuse Deterrent Formulation." The FDA denied PMRS'southward application because it did not believe the evidence supported that claim. The D.C. Excursion upheld that decision. Notably, Rao found a scrivener's error. Hither is 21 UsaC. § 355(c)(1):
And here is 21 United states of americaC. § 355(d):
So what is the status of (d)(seven)? The "shall issue an club refusing to approve the application" linguistic communication refers to all seven subparts; the "clauses (1) to (6)" language does not refer to d(7).
Here is Approximate Rao's resolution:
Interesting. (In that location is more in this example, but that is a good sample.)
In re: Public Employees for Ecology Responsibility is also interesting, especially if follow mandamus (and you should). Gauge Griffith (joined by Judges Henderson and Tatel) addressed a shared statutory duty of the National Park Service and the Federal Aviation Administration to regulate air tours over national parks. The Air Tour Management Act of 2000 requires the FAA, "in cooperation with" the NPS, to "make every effort" to establish direction plans for issuing permits to air tour vendors within 2 years of receiving the first application. The agencies, however, "bickered" for years. Congress somewhen amended the Human action to let for "voluntary agreements" in lieu of management plans at some parks. Merely that has not really worked either. The Court determined that mandamus is warranted because the agency has taken manner too long. (At that place is more going on in this case likewise. If y'all are a real D.C. Circuit nerd expert, you'll be interested in the Court's application of Telecommunications Research & Activeness Eye v. FCC, 750 F.2d lxx (D.C. Cir. 1984).)
Finally, in Young 5. SEC, Judge Wilkens (joined Judge Sentelle) denied review of an SEC decision because the petitioner, acting pro se, missed a filing deadline past one day. Why? He sought review in the D.C. Court of Appeals rather than the U.S. Court of Appeals for the D.C. Excursion. That is non enough for equitable tolling (even assuming it is non a jurisdictional deadline). Gauge Williams concurred, stating that he believed the courtroom was precluded from applying equitable tolling, but expressing business organisation:
The decision reminds me of a mail service of mine from 2017: District of Columbia Circuit Court of Appeals. Here is the heart of that post:
This proper name confusion has gone on for far besides long. Maybe the en banc D.C. Circuit tin can persuade Congress to fix it.
* I asked my (wonderful) librarian to pull the cases. Here is the list:
J. Katsas Majority Opinions
Loumiet 5. United States, 948 F.3d 376 (D.C. Cir. 2020)
DCH Regional Medical Heart v. Azar, 925 F.3d 503 (D.C. Cir. 2019)
Humane Society of the United States v. Perdue, 935 F.3d 598 (D.C. Cir. 2019)
Planned Parenthood of Wisconsin, Inc. v. Azar, 942 F.3d 512 (D.C. Cir. 2019)
In re Track Freight Fuel Surcharge Antitrust Litigation, 934 F.3d 619 (D.C. Cir. 2019)
Trudel v. SunTrust Bank, 924 F.3d 1281 (D.C. Cir. 2019)
Twin Rivers Newspaper Co. LLC v. SEC, 934 F.3d 607 (D.C. Cir. 2019)
United States v. Islam, 932 F.3d 957 (D.C. Cir. 2019)
Wayne J. Griffin Electric, Inc. v. Secretary of Labor, 928 F.3d 105 (D.C. Cir. 2019)
American Hospital Donkey'northward v. Azar, 895 F.3d 822 (D.C. Cir. 2018)
ANR Storage Co. v. FERC, 904 F.3d 1020 (D.C. Cir. 2018)
Big Bend Conservation Alliance five. FERC, 896 F.3d 418 (D.C. Cir. 2018)
Delaware Riverkeeper Network v. FERC, 895 F.3d 102 (D.C. Cir. 2018)
Old Rule Electric Cooperative v. FERC, 898 F.3d 1254 (D.C. Cir. 2018)
St. Francis Medical Center v. Azar, 894 F.3d 290 (D.C. Cir. 2018)
J. Rao Majority Opinions
In re Air Crash Over the Southern Indian Body of water on March viii, 2014, 946 F.3d 607 (D.C. Cir. 2020)
Gulf S Pipeline Company, LP 5. FERC, No. 19-1074 (D.C. Cir. Apr. 10, 2020)
Pharmaceutical Manufacturing Research Services, Inc. five. FDA, No. 18-1335 (May 1, 2020):
Ted Cruz for Senate v. FEC, No. 19-cv-908 (DDC Mar. 30, 2020) (articulation opinion)
U.s. v. Carr, 946 F.3d 598 (D.C. Cir. 2020)
United States v. Marshall, 946 F.3d 591 (D.C. Cir. 2020)
Carlson five. Postal Regulatory Commission, 938 F.3d 337 (D.C. Cir. 2019)
District No. 1, Pacific Coast District, Marine Engineers Beneficial Donkey'n, AFL-CIO 5. Liberty Maritime Corp., 933 F.3d 751 (D.C. Cir. 2019)
J. Katsas Dissents
United States v. Butler, No. 17-3080 (D.C. Cir. Apr. 14, 2020) (Katsas, J., dissenting)
Davis 5. District of Columbia, 925 F.3d 1240 (D.C. Cir. 2019) (Katsas, J., dissenting in office)
Liberterian Nat'l Commission, Inc., v. FEC, 924 F.3d 533 (D.C. Cir. 2019) (Katsas, J., dissenting in part)
Philipp v. Federal Republic of Federal republic of germany, 925 F.3d 1349 (D.C. Cir. 2019) (Katsas, J., dissenting from the denial of rehearing en banc)
Reid 5. Hurwitz, 914 F.3d 670 (D.C. Cir. 2019) (Katsas, J., dissenting) (amended and superseded past Reid v. Hurwitz, 920 F.3d 828 (D.C. Cir. 2019) (Katsas, J., dissenting))
Reid v. Hurwitz, 920 F.3d 828 (D.C. Cir. 2019) (Katsas, J., dissenting)
Singletary v. Howard University, 939 F.3d 287 (D.C. Cir. 2019) (Katsas, J., dissenting)
Simon five. Republic of Republic of hungary, 911 F.3d 1172 (D.C. Cir. 2018) (Katsas, J., dissenting)
Trump five. Mazars USA, LLP, 941 F.3d 1180 (D.C. Cir. 2019) (Katsas, J., dissenting from denial of rehearing en banc)
United Steel v. Mine Safety & Health Administration, 925 F.3d 1279 (D.C. Cir. 2019) (Katsas, J., dissenting in function)
Alcresta Therapeutics, Inc. 5. Azar, 755 Fed. App'x 1 (D.C. Cir. 2018) (Katsas, J., dissenting)
J. Rao Dissents
Natural Resource Defense Council v. Wheeler, 955 F.3d 68 (D.C. Cir. 2020) (Rao, J., dissenting)
Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019) (Rao, J., dissenting)
In re Commission on the Judiciary, 951 F.3d 589 (D.C. Cir. 2020) (Rao, J., dissenting)
J. Katsas Concurrences
In re Federal Bureau of Prisons' Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020) (Katsas, J., concurring)
Woodhull Liberty Foundation v. United States, 948 F.3d 363 (D.C. Cir. 2020) (Katsas, J., concurring in judgment)
People for the Upstanding Handling of Animals v. Dep't of Agronomics, 912 F.3d 641 (D.C. Cir. 2019) (Katsas, J., concurring)
Rhea Lana, Inc. 5. United States, 925 F.3d 521 (D.C. Cir. 2019) (Katsas, J., concurring)
American Society for Testing and Materials v. Public.Resource.Org, Inc., 896 F.3d 437 (D.C. Cir. 2018) (Katsas, J., concurring)
Palmieri v. U.s.a., 896 F.3d 579 (D.C. Cir. 2018) (Katsas, J., concurring)
United States v. Sitzmann, 893 F.3d 811 (D.C. Cir. 2018) (Katsas, J. concurring)
J. Rao Concurrences
In re Federal Bureau of Prisons' Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020) (Rao, J., concurring)
I doubtable in that location volition be more soon ….
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