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Author: JurisPage
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). …
“That answer is not acceptable in this court ever.”
Recently, during an oral argument in the D.C. Circuit, counsel (who shall remain nameless) attempted to do what appellate practitioners call “fighting the hypo.” Chief …
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 …
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 …
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 …
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 …
Don’t lean too hard on jurisdictional truisms
Two recent decisions of the D.C. Circuit provide reminders that even jurisdictional truisms are not absolute. Truism #1: If Congress says something is jurisdictional, it’s …
Katsas v. Randolph on jurisdictional order of operations
Not long ago, two D.C. Circuit decisions reminded us not to lean too hard on jurisdictional truisms (e.g., “jurisdiction can’t be waived”), which, though seemingly …
Can an agency un-moot a case by announcing a new rulemaking?
A new D.C. Circuit decision begins with this “well-settled principle”: “when an agency has rescinded and replaced a challenged regulation, litigation over the legality of …
Biden nominates South Carolina District Judge to replace Tatel
You may have missed it in the holiday bustle, but on December 23 President Biden announced his nominee to replace D.C. Circuit Judge David Tatel, …
