A blog on practice in the Nation’s second-most powerful court

Appellate procedure

D.C. Circuit issues (unintentionally?) dueling rulings on whether the finality of agency actions is jurisdictional

It’s common for the D.C. Circuit to say that the finality of agency action is not jurisdictional.  For example, it did so just last month—and …

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Appellate procedure

D.C. Circuit finds lack of substantial evidence—again

Courts rarely hold that agency decisions lack substantial evidence.  Or so goes the conventional wisdom.  And there’s something to it—see, for example, our recent post …

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Statutory interpretation

In statutory construction, be careful assuming the greater includes the lesser

The FDA has the undisputed power to ban a medical device entirely; but if it approves the device, it may not ban certain uses.  That …

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Judges

A little-noticed recent article by new D.C. Circuit judge Brown Jackson

Today, Ketanji Brown Jackson was confirmed as a judge on the D.C. Circuit by the U.S. Senate.  You probably know that Judge Brown Jackson sat …

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Administrative law

“Breeding closely related iguanas is not a good idea”

So held a panel of the D.C. Circuit on Friday.  Well, to be precise, the panel held that this intriguing determination of the U.S. Fish and …

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Administrative law

Can an agency make a decision nonfinal by calling compliance voluntary?

Not if voluntary really means mandatory, said the D.C. Circuit this week.  No. 19-1248, Spirit Airlines, Inc. v. U.S. Dep’t of Transp. (May 21, 2021). …

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Statutory interpretation

“We must give effect to the specific over the general”

If you’re a litigator, you’ve probably invoked the specific-controls-the-general canon at one time or another.  Whether you’ve prevailed with that argument is another question; it …

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Court

D.C. Circuit puts Garamond font on the naughty list

Without formally banning it, the D.C. Circuit has announced that wise lawyers will forgo using Garamond font: Federal Rule of Appellate Procedure 32(a)(5) requires courts …

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Court

D.C. Circuit divides again on finality of orders dismissing complaints without prejudice

If a district court dismisses a complaint in its entirety and closes the case, is the order final and appealable?  Not necessarily, a panel of …

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Administrative law

D.C. Circuit rejects hospitals’ challenge to Trump Administration rule

As readers will recall, a broad collection of hospitals, led by the American Hospital Association, challenged the Trump Administration’s interpretation of the Affordable Care Act’s …

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